CopyCited 59 times | Published | Court of Appeals for the Eleventh Circuit | 82 Fed. R. Serv. 3d 503, 2012 WL 1581334, 2012 U.S. App. LEXIS 9334
...The Florida Birth-Related Neurological Injury Compensation Act
“established the Florida Birth-Related Neurological Injury Compensation Plan,”
which is a system to “provid[e] compensation, irrespective of fault, for
birth-related neurological injury claims.” Fla. Stat. § 766.303(1)....
...vidence
3
of bad faith or malicious purpose or willful and wanton disregard of human rights,
safety, or property,” and “suit is filed prior to and in lieu of payment of an award”
under the plan. Id. §
766.303(2). To recover under the no-fault plan, the
representatives of an injured infant must file a claim with the Florida Birth-Related
Neurological Injury Compensation Association, which administers the plan. Id.
§§
766.303,
766.305,
766.315....
...Stanton and Audette were both
certified participants in the no-fault compensation plan when they treated
Maradiaga and J.C.S.M. Because a like private physician would be immune from
tort liability for birth-related neurological injuries attributable to his negligence,
Fla. Stat. § 766.303(2), the United States is entitled to immunity from tort liability
for birth-related neurological injuries attributable to the negligence of Stanton and
Audette....
...Maradiaga and Sordia-Martinez
also contend that the Compensation Act does not foreclose their civil action to the
extent that Stanton and Audette “acted with reckless and wanton disregard for the
rights, well-being, and safety of J.C.S.M.” Cf. Fla. Stat. § 766.303(2).
These arguments fail because Maradiaga and Sordia-Martinez either
affirmatively waived or forfeited the right to raise them....
CopyCited 40 times | Published | Supreme Court of Florida | 1997 WL 18238
...The NICA Plan was established by the legislature "to provide compensation, on a no-fault basis, for a limited class of catastrophic [birth-related neurological] injuries that result in unusually high costs for custodial care and rehabilitation." §
766.301(2), see also §
766.303(1)....
...As the Birnies did here, the injured infant or his personal representative may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings (DOAH) within five years of the infant's birth. See §§
766.302(3),
766.303(2),
766.305(1), and
766.313....
CopyCited 19 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 40, 2010 Fla. LEXIS 43, 2010 WL 114510
...In both of the underlying cases, the ALJ and the Second District interpreted NICA's notice provision as not severable based on NICA's exclusivity of remedies rule, which provides that if an injury is found to be compensable under NICA, then all civil remedies are precluded. [5] See § 766.303(2), Fla....
...QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur. CANADY, J., recused. NOTES [1] We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. [2] The "plan" means the Florida Birth-Related Neurological Injury Compensation Plan established under section 766.303, Florida Statutes (1997)....
...re 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. §
766.303(2), Fla....
...other remedies "against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury." § 766.303(2), Fla....
CopyCited 16 times | Published | Supreme Court of Florida | 2011 WL 2637444
...While it is true that claimants bear the initial burden of proof under section
766.309(1)(a) and under the act generally, it is also true that the NICA Plan is intended to reduce malpractice claims brought under traditional tort law. See §§
766.301,
766.303, Fla....
...e, respiratory effort, muscle tone, reflex irritability, and color. See Nagy v. Fla. Birth-Related Neuro. Injury Comp. Ass'n,
813 So.2d 155, 156 n. 1 (Fla. 4th DCA 2002) (citing Dorland's Illustrated Medical Dictionary 1498 (27th ed. 1988)). [3] See §
766.303(2), Fla....
CopyCited 15 times | Published | Supreme Court of Florida
...In each case, the infant's parents filed a medical malpractice suit against the health care provider who assisted in the delivery of the infant. [4] The defending health care provider responded by raising the affirmative defense that the civil suit was brought in violation of NICA's exclusive remedy provision, section 766.303(2), Florida Statutes (1997). In each case, the respective circuit court abated the medical malpractice action and ordered the parents to file a claim for compensation under the injury compensation plan established by section 766.303, Florida Statutes (the NICA Plan)....
...on 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. If a health care provider complies with this notice provision, according to section
766.303, compensation under the plan is the exclusive remedy for the covered injuries....
...Florida. See §
766.301, Fla. Stat. (Supp.1998). In NICA, the Legislature established the NICA Plan, §
766.302(8), Fla. Stat. (1997), "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims." §
766.303(1), Fla....
...Finally, if the first and second requirements are met, the ALJ must determine the amount of the award without any regard for fault. §§
766.309(1)(c),
766.31(1), Fla. Stat. (1997). If the ALJ determines that a claim is compensable, compensation under the NICA Plan becomes the claimant's exclusive remedy. See §
766.303(2), Fla....
...rs."). A claimant may not bring or maintain a civil suit in violation of NICA's exclusive remedy provision. §
766.304, Fla. Stat. (Supp.1998). ("[N]o civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s.
766.303.")....
...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303....
...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303....
...The Limits of ALJ Jurisdiction Under NICA In the instant case, the ALJ did something 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....
...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). These issues are entirely distinct and separate from the issue of compensability under the plan. The issue of notice is only relevant to the issue of whether a provider is eligible under section
766.303(2) for immunity from tort liability....
...to be compensable, the ALJ must go on to determine the amount of compensation that is awardable. See §§
766.309(1)(c), .31. If the ALJ determines that a claim is not compensable under NICA, there can, of course, be no immunity from liability under section
766.303(2)....
...If the ALJ determines that a claim is compensable but the potential claimant desires to forgo compensation under NICA and to pursue a civil action for tort remedies, a determination must then be made concerning whether that civil action is "in violation of the exclusiveness of remedy provisions of s.
766.303." §
766.304....
...See Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan,
668 So.2d 974, 979 (Fla.1996). Further, as we explained in McKaughan, we take into consideration that this statute abridges Florida's constitutional guarantee of access to the courts. See id. at 979 n. 3; see also §
766.303, Fla....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal
...nd thus are immune from malpractice claims for birth-related neurological injuries except in situations involving "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property." § 766.303(2)....
...for common law rights and liabilities. American Freight Sys., Inc. v. Florida Farm Bureau Casualty Ins. Co.,
453 So.2d 468 (Fla. 2d DCA 1984); Grice v. Suwannee Lumber Mfg. Co.,
113 So.2d 742 (Fla. 1st DCA 1959). The Plan shares this characteristic. Section
766.303(2) provides in pertinent part that "[t]he rights and remedies granted by this plan ......
...rth-related neurological injury,' before a medical malpractice claim may be pursued. Rather, the Plan contemplates the filing of such claims at the election of the legal representative, and presumably, as a consequence of the provisions of [section] 766.303(2), they will do so when a good faith evaluation of the case reveals that the injury is compensable under the Plan or they harbor some reasonable uncertainty....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 2002 WL 885235
...rida Statutes (1999), which provides: If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provision of s. 766.303. Section 766.303(2), Florida Statutes (1999), provides: The rights and remedies granted by this plan shall exclude all other rights and remedies ......
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2004 WL 57230
...tain exceptions not relevant here"shall provide notice to the obstetrical patients ... as to the limited no-fault alternative for birth-related neurological injuries," i.e. the plan. A fundamental element of NICA is its exclusive remedy provision. Section 766.303(2), Florida Statutes (1997), provides: The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, pare...
...Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s.
766.311. Although the text of NICA has no express provision on this point, an essential feature of the statutory scheme as it has been implemented is that the availability of immunity under section
766.303(2) is contingent on the giving of notice pursuant to section
766.316....
...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303....
...The Limits of ALJ Jurisdiction Under NICA In the instant case, the ALJ did something 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....
...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). These issues are entirely distinct and separate from the issue of compensability under the plan. The issue of notice is only relevant to the issue of whether a provider is eligible under section
766.303(2) for immunity from tort liability....
...to be compensable, the ALJ must go on to determine the amount of compensation that is awardable. See §§
766.309(1)(c), .31. If the ALJ determines that a claim is not compensable under NICA, there can, of course, be no immunity from liability under section
766.303(2)....
...If the ALJ determines that a claim is compensable but the potential claimant desires to forgo compensation under NICA and to pursue a civil action for tort remedies, a determination must then be made concerning whether that civil action is "in violation of the exclusiveness of remedy provisions of s.
766.303." §
766.304....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2001 WL 220009
...The autopsy and death certificate indicated that the child died of respiratory failure, due to apnea, as a consequence of hypoxic ischemic encephalopathy. Ms. Fluet filed a claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan. §§ 766.303(1), .305, Fla. Stat. (1999). This statutory plan provides an exclusive nofault benefit in lieu of the claimant's traditional common law tort rights. See § 766.303(1), (2); Florida Birth-Related Neurological Injury Compensation Ass'n v....
CopyCited 10 times | Published | Supreme Court of Florida
...The purpose of this plan, as expressed by the Legislature, is to provide compensation, on a no-fault basis, for birth-related neurological injuries. The compensation plan is the exclusive remedy for such injuries, and limits recovery to $100,000. See § 766.303, Fla....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 2004 WL 1920005
...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303....
...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....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 1992 WL 191597
...ising jurisdiction in a medical malpractice action arising from a birth-related neurological injury which resulted in the infant's death. The plaintiffs sought a declaration that the statute on which the defendants' jurisdictional argument is based, section 766.303, Florida Statutes (1991), is unconstitutional....
...Compensation Plan, and that the administrative rights and remedies granted by the Plan for birth-related neurological injury are exclusive unless there is clear and convincing evidence of bad faith, malicious purpose, or willful and wanton conduct. § 766.303(2), Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...Thus, we do not address here whether a medical emergency existed for any of these patients or consider any of these hypothetical situations. [2] In their motions for rehearing, appellants argue that, if appellees are limited to pursuing NICA remedies as to any appellant, section 766.303(2), Florida Statutes (1989), bars appellees from pursuing a common law action against any other appellant for a birth-related neurological injury....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2002 WL 31641524
...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....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2003 WL 1785928
...(Bayfront), and the Florida Birth-Related Neurological Injury Compensation Association (NICA) [1] challenge an order entered by an administrative law judge (ALJ) determining that, due to Bayfront's failure to give the statutorily required notice, Bayfront was not entitled to the exclusiveness of remedy provision of section 766.303, Florida Statutes (1997), and that both Bayfront and the delivering physician were potentially liable in a medical malpractice action in the circuit court....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2005 WL 2862055
...section
766.302(2). A proceeding under the Act forecloses a tort action unless the injury is found to be non-compensable according to section
766.304, and it allows a form of immunity from suit for participating providers in some circumstances under section
766.303(2)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...The Plan is a legislatively created program that provides compensation, irrespective of fault, to parents of children found (1) to have suffered certain birth-related neurological injuries, and (2) to have been delivered by a participating physician. §§
766.303,
766.309, Fla....
...However, physicians who choose to participate in the Plan pay higher assessments than nonparticipating physicians. Id. Compensation awarded under the Plan is an exclusive remedy and a defense to any malpractice action the parents might file against any health care provider related to the delivery of the child. § 766.303....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2008 WL 140806
...The legislative intent in developing the Plan was "to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation." §
766.301(2). The Plan provides for the payment of claims without the necessity of proving fault. §
766.303(1)....
...the state and all hospitals licensed under chapter 395, Florida Statutes. §
766.314(4). However, physicians who choose to participate in the coverage provided by the Plan are *707 required to pay an additional annual assessment. §
766.314(4), (5). Section
766.303(2) provides that if injuries resulting from the delivery of an infant meet the statutory definition of a "[b]irth-related neurological injury," §
766.302, and if the delivering physician is a participant in the Plan, the remedy provi...
...However, the Plan provides for two exceptions to this exclusivity provision. First, the provision does not apply when there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property." § 766.303(2)....
..., assistant residents, and interns deemed to be participating physicians under s.
766.314(4)(c) . . . shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries."). [3] See §
766.303(2) ("The rights and remedies granted by this [P]lan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin ....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2003 WL 327530
...Studdert, et al., The Jury is Still In: Florida's Birth-Related Neurological Injury Comp. Plan After a Decade, 25 J. Health Pol. Pol'y & L. 499 (June 2000). In its current form, it provides exclusive no-fault benefits to eligible claimants in lieu of the claimants' traditional common law tort rights. See § 766.303(1), (2), Fla....
...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...quash a trial court order which denied their motion for summary judgment. Pediatrix argues they are immune from suit under the exclusiveness of remedy provision of the Florida Neurological Birth-Related Injury Compensation Plan (NICA or "the plan"). § 766.303(2), Fla....
...notice provisions of NICA. The parents accepted NICA benefits and did not object to summary judgments entered for the delivering doctor and hospital. Thereafter, Pediatrix moved for summary judgment based on the exclusiveness of remedy provision of section 766.303(2)....
...This makes clear that, once a claimant accepts NICA benefits for a compensable claim, the claimant forgoes any civil suit against "any person or entity [including non-covered persons or entities] directly involved with the labor, delivery, or immediate postdelivery resuscitation." § 766.303(2)....
...When a claim is compensable under NICA as to some persons or entities involved, but not others, a claimant must elect to accept the NICA no-fault benefits or to pursue a civil action against any non-covered persons or entities. The remedies are mutually exclusive. The plain language of section 766.303(2) bars double recovery for a compensable injury under NICA....
...(2009) ("If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under §
766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of §
766.303."); Fla....
...obstetrical services, such as a non-participating physician or one that failed to provide required notice. [1] The trial court departed from the essential requirements of law in failing to properly implement the exclusiveness of remedy provision of section 766.303(2)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1995 WL 529194
...Accordingly, the trial court's final order dismissing the Braniffs' medical malpractice action is REVERSED, and the case is REMANDED for proceedings consistent with this opinion. ERVIN and MINER, JJ., concur. BENTON, J., concurs in result. NOTES [1] Section 766.303(2), Florida Statutes (1993), provides that the administrative remedy established in NICA "shall exclude all other rights and remedies of such infant, his personal representative, parents, dependents, and next of kin, at common law or...
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 31 Fla. L. Weekly Fed. D 1788
...Alexander,
909 So.2d 582 (Fla. 5th DCA 2005). ORHS defended the lawsuit by asserting its immunity from civil suit pursuant to the exclusive remedy of the compensation plan administered by Florida's Neurological Injury Compensation Association (NICA). See generally §
766.303, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 8763, 2010 WL 2425998
...each parent of a qualifying child. Even if it were necessary to resort to rules of construction, we would reject the Samples' contention that the Plan does not clearly define the extent to which parental filial consortium claims have been abrogated. Section 766.303(2), Florida Statutes, expressly excludes filial consortium claims, stating that the rights and remedies granted by the Plan "shall exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin, at common law or otherwise ......
...In this case, the ALJ awarded the Samples the maximum compensation in a lump sum payment pursuant to a stipulation. Thus, they cannot claim that the ALJ arbitrarily applied the statute. [6] Before addressing these exceptions, NICA claims that the Samples' right of access to courts is not denied at all by the Plan because section 766.303(2) allows a civil action in lieu of the Plan where there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property." This argument ignores the fact that th...
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 7980, 2015 WL 3390092
...rings
(“DOAH”) to receive compensation from the Florida Birth-Related Neurological
Injury Association (“the Association”), which was established to provide no-fault
compensation to claimants meeting the statutory requirements of NICA. See §
766.303, Fla....
...instead
to hold in abeyance their decision whether to accept NICA benefits as their
exclusive remedy while pursuing their civil suit against UM.
In April 2011, UM filed a motion for summary final judgment claiming
immunity from suit under section
766.303 of NICA (“NICA’s Immunity
2 The ALJ has “exclusive jurisdiction to determine whether a claim filed under
[NICA] is compensable.” §
766.304, Fla....
...actions against “any person or entity directly involved with the labor, delivery,
or immediate postdelivery resuscitation during which such injury occurs,
arising out of or related to a medical negligence claim with respect to such
injury.” § 766.303(2) (emphasis added).5 Thus, assuming that an injury is
4 These rights and remedies allow a claimant to file a claim in the DOAH for an
ALJ to determine whether the claim is compensable....
...the child’s parents of up to $100,000 if living or $10,000 if deceased, §
766.31(1)(b), and reasonable expenses incurred in filing the NICA claim, including
attorney’s fees, §
766.31(1)(c). These remedies are provided regardless of fault by
any party.
5 Section
766.303(2) provides an exception from this immunity “where there is
8
compensable under NICA, the sine qua non for a defendant to invoke NICA’s
Immunity Provision is direct involvement in the...
...Giving a patient notice of NICA participation does
not entitle a party to immunity; rather, a party’s direct involvement in the labor
and delivery of a child who suffers a NICA-compensable injury entitles that party
to invoke NICA’s Immunity Provision. § 766.303(2)....
...UM is immune for any direct acts of negligence
To the extent the plaintiffs have pled direct liability against UM for actions
related to Michael’s birth, UM is entitled to immunity. As explained above,
NICA’s Immunity Provision applies to any person or entity directly involved in the
labor and delivery. § 766.303(2)....
...on the notion that UM is not directly involved in the labor and delivery. As
explained above, NICA’s Immunity Provision applies only to those “person[s] or
entit[ies] directly involved” with the labor and delivery of the child with a NICA-
compensable injury. See § 766.303....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1998 WL 190501
...Black of Frank, Effman, Weinberg & Black, P.A., Plantation, for appellee. KLEIN, Judge. The O'Briens, as personal representatives of the estate of their son, brought this action under the Florida Birth-Related Neurological Injury Compensation Plan established by section 766.303, Florida Statutes (1995)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...est with their minor child, Jennifer. It contends that the funding for Jennifer's lifetime medical needs would be irrevocably lost if her parents reject the award. TMRMC concedes that the Petersens are statutorily entitled to elect their remedy. See § 766.303(2), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2008 WL 142308
...nt notice was given under the Florida Birth-Related Neurological Injury Compensation Act (the Act), sections
766.301-.316, Florida Statutes (1997), for All Children's Hospital to obtain the benefit of the exclusivity of remedy provision set forth in section
766.303(2)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2006 WL 348718
...The legislature passed NICA in order to help "stabiliz[e] and reduc[e] malpractice insurance premiums" faced by obstetricians. §
766.301(1)(c), Fla. Stat. (2000). *784 The plan provides "compensation, irrespective of fault, for birth-related neurological injury claims." §
766.303(1), Fla....
...at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury...." § 766.303(2), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1994 WL 45168
...Claimants' counsel concede that in the pre-petition phase, they had several other responsibilities to perform for their client which did not relate to the NICA petition. The NICA statute contains a "bad faith" exception which allows the filing of a civil suit in lieu of a NICA petition. Id. § 766.303(2)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 4502, 2010 WL 1329656
...h a trial court order which denied their motion for summary judgment. Pediatrix argues they are immune from suit under the exclusiveness of remedy provision of the Florida Neurological Birth-Related Injury Compensation Plan (NICA or “the plan”). § 766.303(2), Fla....
...notice provisions of NICA. The parents accepted NICA benefits and did not object to summary judgments entered for the delivering doctor and hospital. Thereafter, Pediatrix moved for summary judgment based on the exclusiveness of remedy provision of section 766.303(2)....
...This makes clear that, once a claimant accepts NICA benefits for a compensable claim, the claimant forgoes any civil suit against “any person or entity [including non-covered persons or entities] directly involved with the labor, delivery, or immediate postdelivery resuscitation.” § 766.303(2)....
...When a claim is compensable under NICA as to some persons or entities involved, but not others, a claimant must elect to accept the NICA no-fault benefits or to pursue a civil action against any non-covered persons or entities. The remedies are mutually exclusive. The plain language of section 766.303(2) bars double recovery for a com-pensable injury under NICA....
...(2009) (“If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under §
766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of §
766.303.”); Fla....
...of obstetrical services, such as a non-participating physician or one that failed to provide required notice. 1 The trial court departed from the essential requirements of law in failing to properly implement the exclusiveness of remedy provision of section 766.303(2)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...Jobes and Liana Silsby of George, Hartz, Lundeen & Fulmer, Ft. Lauderdale, for Appellees. PER CURIAM. The appellants have sought review of an Amended Final Order and Award, which determined compensability under the Florida Birth-Related Neurological Injury Compensation Plan ("Plan"), created by section 766.303, Florida Statutes (2002)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 1987, 2011 WL 561453
...child was born. The suit proceeded against the remaining defendant, All Children's Hospital, the employer of the neonatal nurses who attended the child just after her birth. All Children's asserted that it was immune from tort liability under NICA, section 766.303(2), Florida Statutes (1997), and that the Glenns' exclusive remedy was to pursue a claim against the Florida Birth-Related Neurological Injury Compensation Plan....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...e 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)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
..., assistant residents, and interns deemed to be participating physicians under s.
766.314(4)(c) . . . shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries."). [3] See §
766.303(2) ("The rights and remedies granted by this [P]lan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin ....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 13083, 2011 WL 3629352
...r to accept compensation under the Plan or to reject compensation and pursue 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....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2005 WL 1199057
...Const.; §
766.311(1), Fla. Stat. (2000). The sole issue appellant presents is whether the administrative law judge had jurisdiction to consider and rule on her claim that she is immune from a civil action for damages by virtue of the provisions of section
766.303(2), Florida Statutes (2000)....
...Here, the administrative law judge decided each of the three issues listed in section
766.309(1). However, finding nothing in the act permitting him to rule on appellant's claim that she is immune from a civil action for damages by virtue of the provisions of section
766.303(2), the administrative law judge declined to do so....
...Appellant acknowledges that section
766.309(1) directs the administrative law judge to make findings as to the three issues listed there. She also concedes that there is no explicit language in the act giving the administrative law judge jurisdiction to rule on claims that, because of section
766.303(2), one is immune from a civil action for damages....
...To do so would be an abrogation of legislative power." Am. Bankers Life Assurance Co. of Fla. v. Williams,
212 So.2d 777, 778 (Fla. 1st DCA 1968). There is nothing in the act that can fairly be read as conferring on administrative law judges jurisdiction to rule upon claims that, because of section
766.303(2), one is immune from a civil action for damages....
...2d DCA 2004) ("[t]here is nothing in section
766.309 or elsewhere in [the act] that gives the [administrative law judge] any responsibility or authority to determine ... that a provider is or is not entitled to invoke the immunity from tort liability provided for in section
766.303(2)"); Gugelmin v....
CopyCited 1 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 104, 2014 WL 959180, 2014 Fla. LEXIS 933
...er
the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), which
was structured with other benefits and provided compensation without regard to
fault for birth-related neurological injury claims.
114 So. 3d at 914-15; see also §
766.303, Fla....
...This is clearly distinguishable
from the no-fault compensation award under the Plan at issue in Samples. The
Plan was created by the Florida Legislature with the express purpose of “providing
compensation, irrespective of fault, for birth-related neurological injury claims.” §
766.303(1), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 9699
...The appellants challenge a summary judgment entered for the appellees on *764 wrongful death claims with allegations of medical negligence. Among other defenses, the appellees asserted that those claims are precluded by the exclusivity of remedy provision in the Florida Birth-Related Neurological Injury Compensation Plan, at section 766.303(2), Florida Statutes. The appellants maintained that the claims are allowed under the “willful and wanton” exception in section 766.303(2). In entering summary judgment the court reasoned that the claims could not proceed as the appellants had not pled the “willful and wanton” exception in their complaint. But section 766.303(2) exclusivity is an affirmative defense, which the appellants did not have to negate in their complaint, and the court should not have entered the summary judgment....
...This Plan, as established at sections
766.301 through
766.316, Florida Statutes, provides no-fault compensation for qualifying injuries. However, only a limited recovery may be had under the Plan, and that is made the exclusive remedy with only certain exceptions. See §
766.303(2), Fla....
...nd the circuit court denied the initial motion for summary judgment. Defendants thereafter submitted a supplemental answer raising this affirmative defense, and renewed motions for summary judgment were filed. The appellants responded by noting that section 766.303(2) exclusivity does not .pertain in situations of willful and wanton disregard, and the appellants averred that their civil action was *765 based on such conduct....
...The appellants also submitted affidavits from an obstetrician and a nurse-midwife, who both indicated that there was clear and convincing evidence of willful and wanton disregard in the way the defendants handled the labor and birth. Despite the appellants’ reliance on the willful and wanton exception to section 766.303(2) exclusivity, the circuit court eventually entered summary judgment for the defendants on the wrongful death claims....
...In ruling for the defendants the court observed that the appellants’ complaint had not used the “willful and wanton” language, which the court described as an “obtuse” pleading requirement. The court concluded that, in light of the statutory proscriptions in sections
766.303(2) and
766.304, such an express allegation should have been made before the administrative determination of no award under the Plan became binding, in order for the appellants to rely on the willful and wanton exception to the exclusivity in section
766.303(2). As the appellants pointed out below, section
766.303(2) exclusivity is an affirmative defense to be raised by the defendants....
...1st DCA 1989), and unless raised by the defendants could be deemed to be waived. See, e.g., Southern Mgmt. & Dev. v. Gardner,
992 So.2d 919 (Fla. 4th DCA 2008). The specific allegations of negligence in the complaint in the present case were sufficient and the appellants did not have to negate the section
766.303(2) exclusivity which the defendants claimed, until the defendants raised that matter as an affirmative defense. Once the defense was properly raised the appellants asserted the willful and wanton exception, thus complying with the ordinary requirements of civil procedure and also satisfying the requirements of section
766.303(2). The circuit court therefore should not have entered the summary judgment for the defendants. As provided in section
766.303(2), the statutory grant of exclusivity of remedy under the Plan does not pertain when there is clear and convincing evidence of willful and wanton disregard, if the civil action is filed prior to and in lieu of payment of an award under the Plan (or before an award becomes conclusive and binding)....
...il action against the doctor, the nurse-midwife, and the professional association which was their employer. The appellants suggest that the unavailability of any recovery under the Plan, in light of the settlement with the hospital, should avoid the section 766.303(2) exclusivity without the necessity of clear and convincing evidence of willful and wanton disregard....
...a reasonable alternative to .the civil recourse which might have otherwise been available. The appellants also suggest that regardless of whether there was any willful and wanton disregard in this case, the nurse-midwife should not be able to invoke section
766.303(2) exclusivity if the nurse-midwife did not pay the section
766.314(4)(c), Florida Statutes, assessment for a midwife to be a “participating physician” under the Plan....
...2d DCA 2001), where a supervising doctor was not actually present and directly involved at the birth, and where the parties agreed that the midwife could not invoke the protections of the Plan. It does not appear that there was any such agreement in the present case, and the nurse-midwife here may invoke section
766.303(2) exclusivity, which the appellants might then overcome by showing clear and convincing evidence of willful and wanton disregard. 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....
...That enactment indicates that a hospital and participating physicians should each provide such notice to the obstetrical patient. In Galen of Florida, Inc. v. Braniff,
696 So.2d 308 (Fla.1997), it was established that such notice is a condition precedent for invocation of section
766.303(2) exclusivity....
...But unlike Galen and Athey , where there was no notice given by any medical provider, in the present case the delivering obstetrician satisfied the statutory requirement by furnishing the patient with the necessary notice. Although the hospital here may not have provided its own separate notice, the doctor’s invocation of section 766.303(2) exclusivity is not limited by the hospital’s absence of notice....
...4th DCA 2002). While in Gugelmin the hospital gave notice but the doctor did not, and the present case involves the converse situation, Gugelmin indicates that the medical provider who gave the patient notice of participation in the Plan may rely on section 766.303(2) exclusivity regardless of whether another provider failed to give the patient such notice....
...1st DCA 2002), where a doctor who did not give the required notice could not invoke the exclusivity defense, despite such notice having been provided by another entity. In Schur the party who did not give notice was not allowed to use another party’s notice as a means to invoke section 766.303(2) exclusivity, whereas here the doctor is invoking such exclusivity based on the notice he gave the patient....
...participation and coverage under the Plan. The circuit court should not have entered this summary judgment, as the appellants presented a basis to allow their wrongful death claims under the willful and wanton exception to the affirmative defense of section 766.303(2) exclusivity. In accordance with section 766.303(2), such claims depend on clear and convincing evidence of willful and wanton disregard....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 WL 2048919
...The appellants challenge a summary judgment entered for the appellees on *764 wrongful death claims with allegations of medical negligence. Among other defenses, the appellees asserted that those claims are precluded by the exclusivity of remedy provision in the Florida Birth-Related Neurological Injury Compensation Plan, at section 766.303(2), Florida Statutes. The appellants maintained that the claims are allowed under the "willful and wanton" exception in section 766.303(2). In entering summary judgment the court reasoned that the claims could not proceed as the appellants had not pled the "willful and wanton" exception in their complaint. But section 766.303(2) exclusivity is an affirmative defense, which the appellants did not have to negate in their complaint, and the court should not have entered the summary judgment....
...This Plan, as established at sections
766.301 through
766.316, Florida Statutes, provides no-fault compensation for qualifying injuries. However, only a limited recovery may be had under the Plan, and that is made the exclusive remedy with only certain exceptions. See §
766.303(2), Fla....
...nts returned to the circuit court where the civil action remained pending. The doctor, the nurse-midwife, and their employer subsequently moved for summary judgment, asserting that the civil action is barred by the exclusivity of remedy provision in section 766.303(2)....
...nd the circuit court denied the initial motion for summary judgment. Defendants thereafter submitted a supplemental answer raising this affirmative defense, and renewed motions for summary judgment were filed. The appellants responded by noting that section 766.303(2) exclusivity does not pertain in situations of willful and wanton disregard, and the appellants averred that their civil action was *765 based on such conduct....
...The appellants also submitted affidavits from an obstetrician and a nurse-midwife, who both indicated that there was clear and convincing evidence of willful and wanton disregard in the way the defendants handled the labor and birth. Despite the appellants' reliance on the willful and wanton exception to section 766.303(2) exclusivity, the circuit court eventually entered summary judgment for the defendants on the wrongful death claims....
...In ruling for the defendants the court observed that the appellants' complaint had not used the "willful and wanton" language, which the court described as an "obtuse" pleading requirement. The court concluded that, in light of the statutory proscriptions in sections
766.303(2) and
766.304, such an express allegation should have been made before the administrative determination of no award under the Plan became binding, in order for the appellants to rely on the willful and wanton exception to the exclusivity in section
766.303(2). As the appellants pointed out below, section
766.303(2) exclusivity is an affirmative defense to be raised by the defendants....
...1st DCA 1989), and unless raised by the defendants could be deemed to be waived. See, e.g., Southern Mgmt. & Dev. v. Gardner,
992 So.2d 919 (Fla. 4th DCA 2008). The specific allegations of negligence in the complaint in the present case were sufficient and the appellants did not have to negate the section
766.303(2) exclusivity which the defendants claimed, until the defendants raised that matter as an affirmative defense. Once the defense was properly raised the appellants asserted the willful and wanton exception, thus complying with the ordinary requirements of civil procedure and also satisfying the requirements of section
766.303(2). The circuit court therefore should not have entered the summary judgment for the defendants. As provided in section
766.303(2), the statutory grant of exclusivity of remedy under the Plan does not pertain when there is clear and convincing evidence of willful and wanton disregard, if the civil action is filed prior to and in lieu of payment of an award under the Plan (or before an award becomes conclusive and binding)....
...il action against the doctor, the nurse-midwife, and the professional association which was their employer. The appellants suggest that the unavailability of any recovery under the Plan, in light of the settlement with the hospital, should avoid the section 766.303(2) exclusivity without the necessity of clear and convincing evidence of willful and wanton disregard....
...a reasonable alternative to the civil recourse which might have otherwise been available. The appellants also suggest that regardless of whether there was any willful and wanton disregard in this case, the nurse-midwife should not be able to invoke section
766.303(2) exclusivity if the nurse-midwife did not pay the section
766.314(4)(c), Florida Statutes, assessment for a midwife to be a "participating physician" under the Plan....
...2d DCA 2001), where a supervising doctor was not actually present and directly involved at the birth, and where the parties agreed that the midwife could not invoke the protections of the Plan. It does not appear that there was any such agreement in the present case, and the nurse-midwife here may invoke section
766.303(2) exclusivity, which the appellants might then overcome by showing clear and convincing evidence of willful and wanton disregard. 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....
...That enactment indicates that a hospital and participating physicians should each provide such notice to the obstetrical patient. In Galen of Florida, Inc. v. Braniff,
696 So.2d 308 (Fla.1997), it was established that such notice is a condition precedent for invocation of section
766.303(2) exclusivity....
...But unlike Galen and Athey, where there was no notice given by any medical provider, in the present case the delivering obstetrician satisfied the statutory requirement by furnishing the patient with the necessary notice. Although the hospital here may not have provided its own separate notice, the doctor's invocation of section 766.303(2) exclusivity is not limited by the hospital's absence of notice....
...4th DCA 2002). While in Gugelmin the hospital gave notice but the doctor did not, and the present case involves the converse situation, Gugelmin indicates that the medical provider who gave the patient notice of participation in the Plan may rely on section 766.303(2) exclusivity regardless of whether another provider failed to give the patient such notice....
...1st DCA 2002), where a doctor who did not give the required notice could not invoke the exclusivity defense, despite such notice having been provided by another entity. In Schur the party who did not give notice was not allowed to use another party's notice as a means to invoke section 766.303(2) exclusivity, whereas here the doctor is invoking such exclusivity based on the notice he gave the patient....
...participation and coverage under the Plan. The circuit court should not have entered this summary judgment, as the appellants presented a basis to allow their wrongful death claims under the willful and wanton exception to the affirmative defense of section 766.303(2) exclusivity. In accordance with section 766.303(2), such claims depend on clear and convincing evidence of willful and wanton disregard....
CopyCited 1 times | Published | Supreme Court of Florida | 2007 Fla. LEXIS 2
...In each case, the infant’s parents filed a medical malpractice suit against the health care provider who assisted in the delivery of the infant. 4 The defending health care provider responded by raising the affirmative defense that the civil suit was brought in violation of NICA’s exclusive remedy provision, section 766.303(2), Florida Statutes (1997). In each case, the respective circuit court abated the medical malpractice action and ordered the parents to file a claim for compensation under the injury compensation plan established by section 766.303, Florida Statutes (the NICA Plan)....
...on 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. If a health care provider complies with this notice provision, according to section
766.303, compensation under the plan is the exclusive remedy for the covered injuries....
...rida. See §
766.301, Fla. Stat. (Supp.1998). In NICA, the Legislature established the NICA Plan, §
766.302(8), Fla. Stat. (1997), “for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims.” §
766.303(1), Fla....
...Finally, if the first and second requirements are met, the ALJ must determine the amount of the award without any regard for fault. §§
766.309(l)(c),
766.31(1), Fla. Stat. (1997). If the ALJ determines that a claim is compensable, compensation under the NICA Plan becomes the claimant’s exclusive remedy. See §
766.303(2), Fla....
...). A claimant may not bring or maintain a civil suit in violation of NICA’s exclusive remedy provision. §
766.304, Fla. Stat. (Supp.1998). (“[N]o civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s.
766.303.”)....
...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303....
...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 12192, 2005 WL 1832017
...On cross-appeal, ap-pellees raise two additional issues, neither of which warrants discussion. Appellants argue that the ALJ erred in determining that he was without jurisdiction to rule upon appellees’ claim that the NICA plan was not their exclusive remedy because of the willful and wanton exception enumerated in section 766.303(2), Florida Statutes (1997)....
...This is because, as a condition precedent to invoking the NICA plan as a patient’s exclusive remedy, healthcare providers must show that they provided the patient with timely notice of their participation in the plan. See Galen of Fla., Inc. v. Braniff,
696 So.2d 308, 309 (Fla.1997). Section
766.303(2), Florida Statutes (1997), provides: The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, pare...
...An administrative agency has only such power as granted by the Legislature and may not expand its own jurisdiction. State, Dep’t of Envtl. Regulation v. Falls Chase Special Taxing Dist.,
424 So.2d 787, 793 (Fla. 1st DCA 1982). Nothing in the plain language of section
766.303(2), Florida Statutes (1997), can be read as granting the ALJ jurisdiction to rule upon the applicability of the willful and wanton exception to NICA plan exclusivity. See Depart,
902 So.2d 271 (focusing on the absence of language in the statute conferring jurisdiction upon the ALJ to rule on claims that a healthcare provider is immune from a civil action pursuant to section
766.303(2) in thus concluding that the ALJ is without such jurisdiction)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 12744, 2009 WL 2602286
...Fluet v. Fla. Birth-Related Neurological Injury Comp. Ass'n,
788 So.2d 1010, 1012 (Fla. 2d DCA 2001). The remedies provided under the NICA Plan preclude all other legal remedies available to an injured infant, the parents, or legal representatives. §
766.303(2), Fla....
...ch renders the infant both "permanently and substantially mentally and physically impaired." §
766.302(2), Fla. Stat. If the infant's injury satisfies this statutory definition, the infant qualifies for financial benefits under the NICA Plan. See §§
766.303,
766.309, and
766.31, Fla....
...While it is true that claimants bear the initial burden of proof under section
766.309(1)(a) and under the act generally, it is also true that the NICA Plan is intended to reduce malpractice claims brought under traditional tort law. See §§
766.301,
766.303, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 13846, 2004 WL 2101891
...Stat. (Supp.1988). The statute authorized no-fault compensation for birth-related neurological injuries, but “exclude[d] all other rights and remedies ... arising out of or related to a medical malpractice claim with respect to such injury....” § 766.303(2), Fla....
...remedies ... against any person or entity directly involved with the labor, delivery, or immediate postde-livery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury.... §
766.303(2), Fla. Stat. (1993). In 1998, the legislature substantially amended NICA’s exclusive remedy provisions. While the above-cited language of section
766.303(2) remained the same, the legislature amended section
766.304, vesting the administrative law judge with exclusive jurisdiction to determine whether the child had suffered a birth-related neurological injury....
...the child must have sustained a birth-related neurological injury as defined by section
733.302(2) and (2) the defendant health care provider must have provided the patient with notice = of the provider's participation in NICA. See §§
766.302(2),
766.303(2),
766.316, Fla. Stat. (1988); §§
766.302(2),
766.303(2),
766.316, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 4094817, 2012 Fla. App. LEXIS 15745
...Pollock and the Pollocks’ child during childbirth. The trial court concluded that the Pollocks’ claims should be dismissed because the Florida Birth-Related Neurological Injury Compensation Plan (NICA) provided the exclusive remedy for the claims under section 766.303(2), Florida Statutes (2010)....
CopyPublished | Florida 1st District Court of Appeal
...ical injuries. Id. If a
claim qualifies as a “birth-related neurological injury,” a
claimant’s exclusive remedy for compensation is through NICA.
Univ. of Miami v. Exposito ex rel. Gonzalez,
87 So. 3d 803, 806 (Fla.
3d DCA 2012). Specifically, section
766.303(2), Florida Statutes
(2015), provides in part:
The rights and remedies granted by this plan on
account of a birth-related neurological injury shall
exclude all other rights and remedies of such infant,
her or his personal representative, parents, ....
...(“No civil action may be
brought until the [compensability] determinations under s.
766.309 have been made by the administrative law judge.”). But
there, the circuit court is also free to reject such a civil case in view
of the Plan’s exclusivity of remedy scheme. See §
766.303, Fla....
...,
Florida Statutes. She sought reimbursement of medical expenses
and payment of benefits out of a public fund the Legislature
established for such injuries under the Florida Birth-Related
Neurological Injury Compensation Plan (the “Plan”). See
§§
766.303,
766.31,
766.314, Fla. Stat. The fund being public, the
Legislature waived sovereign immunity with respect to claims
against it; but in doing so, the Legislature subjected this public
right to certain conditions. §
766.303(3), Fla....
....” (emphasis supplied)).
Now, if there is in fact an award from the Plan’s fund based
on an ALJ-determined entitlement to compensation—that is, if
there is fulfillment of the claimant’s public right—the fulfillment
becomes the exclusive remedy, barring the claimant from
subsequently filing a civil suit. See § 766.303(2), Fla....
...(“If the administrative law
judge determines that the claimant is entitled to compensation
from the association, or if the claimant accepts an award issued
under s.
766.31, no civil action may be brought or continued in
violation of the exclusiveness of remedy provisions of s.
766.303.”);
NICA v....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 6751, 2003 WL 21035332
PER CURIAM. The appellants have sought review of an Amended Final Order and Award, which determined compensability under the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”), created by section 766.303, Florida Statutes (2002)....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 8026, 2015 WL 3396708
...In fact, these petitioners are not participating physicians or within the class of doctors covered by the NICA statute. See §§
766.301,
766.302(7), Fla. Stat. (2007). Even if injuries that the child suffered during birth were arguably compensable under NICA in this .case, the exclusiveness of remedy provision of section
766.303(2) does not apply....
CopyPublished | Florida 4th District Court of Appeal
...In fact, these petitioners are not participating physicians or within
the class of doctors covered by the NICA statute. See §§
766.301,
766.302(7), Fla. Stat. (2007).
Even if injuries that the child suffered during birth were arguably
compensable under NICA in this case, the exclusiveness of remedy
provision of section
766.303(2) does not apply....
CopyPublished | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 317, 2013 WL 2096260, 2013 Fla. LEXIS 1001
...to the child’s injury. Additionally, the Plan does not act as the exclusive remedy in cases “where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property.” § 766.303(2), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 6620, 2004 WL 1057684
...The Plan is a legislatively created program that provides compensation, irrespective of fault, to parents of children found (1) to have suffered certain birth-related neurological injuries, and (2) to havé been delivered by a participating physician. §§
766.303,
766.309, Fla....
...However, physicians, who choose to participate in .the Plan pay higher assessments than nonparticipating physicians. Id. Compensation awarded under the Plan is an exclusive remedy and a defense to any malpractice action the parents might file against any health care provider related to the delivery of the child. § 766.303....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 6935, 1997 WL 336591
...atutory process required of him and which solely prevents this cause of action no longer is be [sie] available as a right and remedy to him. Compensation under NICP is the exclusive relief available to victims of birth-related neurological injuries. § 766.303, Fla....
CopyPublished | Supreme Court of Florida | 29 Fla. L. Weekly Supp. 395, 2004 Fla. LEXIS 1008
injuries, and limits recovery to $100,000. See §
766.303, Fla. Stat. (2003); § 766.3l(1)(b)1., Fla. Stat
CopyPublished | District Court of Appeal of Florida
...Thus, we do not address here whether a medical emergency existed for any of these patients or consider any of these hypothetical situations. . In their motions for rehearing, appellants argue that, if appellees are limited to pursuing NICA remedies as to any appellant, section 766.303(2), Florida Statutes (1989), bars appel-lees from pursuing a common law action against any other appellant for a birth-related neurological injury....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 472, 1999 WL 22730
...The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby. That is the core issue of both the civil action and the administrative petition. To maintain the civil action and avoid the exclusive remedy provisions of section 766.303(2), Florida Statutes (Supp.1988), the McKaughans alleged that Michael was not a NICA baby....
...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303....
CopyPublished | Florida 5th District Court of Appeal | 2004 WL 19485
...4-5). (emphasis added). Fla. Stat. § 766.308, which established and provided for the medical advisory panel, was part of the NICA statute until its repeal in July 2001. [1] Section
766.302, Florida Statutes, refers to the Plan as established under section
766.303....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 1081, 2011 WL 335401
...Nonetheless, it contends that the giving of a NICA notice affords it immunity from suit. We disagree. While immunity for medical providers may be the end result, *388 the NICA statutes do not expressly grant immunity from suit to anyone. Instead, pursuant to section 766.303(2), NICA is to provide the exclusive remedies for claims that fall within the Act: The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infa...
CopyPublished | Florida 1st District Court of Appeal
...David Watkins, Administrative Law Judge.
February 12, 2025
TANENBAUM, J.
Florida law establishes the Florida Birth-Related
Neurological Injury Compensation Plan (the “Plan”) “for the
purpose of providing compensation, irrespective of fault, for birth-
related neurological injury claims.” § 766.303, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...rings
(“DOAH”) to receive compensation from the Florida Birth-Related Neurological
Injury Association (“the Association”), which was established to provide no-fault
compensation to claimants meeting the statutory requirements of NICA. See §
766.303, Fla....
...plaintiffs’ ability to receive NICA benefits from the Association. However, the
plaintiffs have neither accepted nor declined the award to this date, opting instead
to hold in abeyance their decision whether to accept NICA benefits as their
exclusive remedy, § 766.303, while pursuing their civil suit against UM.
In April 2011, UM filed a motion for summary final judgment claiming
immunity from suit under section 766.303 of NICA (hereinafter, “NICA’s
Immunity Provision”), which mandates compensation from the Association as the
exclusive remedy for injuries found to be compensable under NICA....
...actions against “any person or entity directly involved with the labor, delivery, or
immediate postdelivery resuscitation during which such injury occurs, arising out
of or related to a medical negligence claim with respect to such injury.” §
766.303(2).5 Thus, assuming that an injury is compensable under NICA, the sine
4 These rights and remedies allow a claimant to file a claim in the DOAH for an
ALJ to determine whether the claim is compensable....
...the child’s parents of up to $100,000 if living or $10,000 if deceased, §
766.31(1)(b), and reasonable expenses incurred in filing the NICA claim, including
attorney’s fees, §
766.31(1)(c). These remedies are provided regardless of fault by
any party.
5 Section
766.303(2) provides an exception from this immunity “where there is
clear and convincing evidence of bad faith or malicious purpose or willful and
wanton disregard of human rights, safety, or property,” but no such allegations are
involv...
...Giving a patient notice of NICA participation does not entitle a
party to immunity; only a party’s direct involvement in the labor and delivery of a
child who suffers a NICA-compensable injury entitles that party to invoke NICA’s
Immunity Provision. § 766.303(2)....
...UM is immune for any direct acts of negligence
To the extent the plaintiffs have pled direct liability against UM for actions
related to Michael’s birth, UM is entitled to immunity. As explained above,
NICA’s Immunity Provision applies to any person or entity directly involved in the
labor and delivery. § 766.303(2)....
...the negligence of its employees, Drs. Norris
and Barker. Because such a claim is not based on UM’s direct involvement in the
labor and delivery giving rise to the injury, UM is unable to invoke NICA’s
Immunity Provision on its own behalf. See § 766.303.
This result is a logical consequence of the legal tenet that a claim for
vicarious liability rises and falls on the actions and liability of the employee to the
16
extent the employee...
CopyPublished | Florida 1st District Court of Appeal
...shed “a limited
system of compensation irrespective of fault” by creating the
“Plan” to financially cover “a limited class of catastrophic injuries
that result in unusually high costs for custodial care and
rehabilitation.” §§
766.301,
766.303(1), (2), Fla....
...minimum weight, “caused by oxygen deprivation or mechanical
4
injury” that occurs during “labor, delivery, or resuscitation,” that
leaves the baby “permanently and substantially mentally and
physically impaired.” §§
766.302(2),
766.303(4),
766.315(1)(a), Fla.
Stat.
The Plan essentially is a risk-management or insurance trust
fund....
...sound basis,”
subject to certain limitations. §
766.314(1), Fla. Stat. The funds are
to be used exclusively for the payment of “awards” made from the
Plan and for expenses incurred to administer it. §
766.314(2)(a),
(3), Fla. Stat.; see also §
766.303(1), Fla....
...irrespective of fault, for birth-related neurological injury claims.”).
Naturally, the funds under the Plan are state funds, and the
Legislature waives sovereign immunity “solely to the extent
necessary to assure payment of compensation” for BRNIs.
§§
766.303(3),
766.315(5)(f),
766.31(1), Fla....
...regarding a
BRNI are exclusive of “all other rights and remedies . . . against
any person or entity directly involved” that arise of or relate to
medical negligence, except in some limited circumstances.
5
§ 766.303(2), Fla....
...The Legislature
established a fund with treasury dollars and created a public right
26
to compensation from that fund for those infants suffering “a
limited class of” statutorily defined, “catastrophic” BRNIs.
§§
766.301(2),
766.302(2), (3),
766.303(1),
766.305, Fla. Stat. This
right is in favor of “the injured infant” to “promote[] and protect[]
the health and best interests of children with birth-related
neurological injuries.” §§
766.302(3),
766.303(4), Fla. Stat. The
right is enforceable against NICA, which is responsible for
administering the Plan and paying awards out of the treasury
funds available for that purpose. §§
766.303(1),
766.315(4), (5)(a),
Fla....
...(providing that NICA is not “required to make payment of the
award” while it is on appeal). There are no other public rights
provided under the Plan. Indeed, the Legislature has waived
sovereign immunity “solely to the extent necessary to assure
payment of compensation” under the Plan. § 766.303(3), Fla.
Stat....
CopyPublished | Florida 1st District Court of Appeal
it. §
766.314(2)(a), (3), Fla. Stat.; see also §
766.303(1), Fla. Stat. (“There is established the Florida
CopyPublished | Florida 1st District Court of Appeal
...the Legislature established “a limited system of compensation
irrespective of fault” by creating the “Plan” to financially cover “a
limited class of catastrophic injuries that result in unusually high
costs for custodial care and rehabilitation.” §§
766.301(1)(d), (2),
766.303(1), (2), Fla....
...specified
minimum weight, “caused by oxygen deprivation or mechanical
injury” that occurs during “labor, delivery, or resuscitation,” that
leaves the baby “permanently and substantially mentally and
physically impaired.” §§
766.302(2),
766.303(4),
766.315(1)(a), Fla.
Stat....
...subject to certain limitations. §
766.314(2)(a)4., Fla. Stat. The
funds are to be used exclusively for the payment of “awards” made
6
from the Plan and for expenses incurred to administer it. Id. (2)(a),
(3), Fla. Stat.; see also §
766.303(1), Fla....
...irrespective of fault, for birth-related neurological injury claims.”).
Naturally, the funds under the Plan are state funds, and the
Legislature waives sovereign immunity “solely to the extent
necessary to assure payment of compensation” for BRNIs.
§§
766.303(3),
766.315(5)(f),
766.31(1), Fla....
...Indeed, “[t]he rights and remedies” under the Plan regarding a
BRNI are exclusive of “all other rights and remedies . . . against
any person or entity directly involved” that arise out of or relate to
medical negligence, except in some limited circumstances.
§ 766.303(2), Fla....
...The Legislature
established a fund with treasury dollars and created a public right
to compensation from that fund for those infants suffering “a
limited class of” statutorily defined, “catastrophic” BRNIs.
§§
766.301(2),
766.302(2), (3),
766.303(1),
766.305, Fla. Stat. This
right is in favor of “the injured infant” to “promote[] and protect[]
the health and best interests of children with birth-related
neurological injuries.” §§
766.302(3),
766.303(4), Fla. Stat. The
right is enforceable against NICA, which is responsible for
administering the Plan and paying awards out of the treasury
funds available for that purpose. §§
766.303(1),
766.315(4), (5)(a),
Fla....
...(providing that NICA is not “required to make payment of the
award” while it is on appeal). There are no other public rights
provided under the Plan. Indeed, the Legislature has waived
sovereign immunity “solely to the extent necessary to assure
payment of compensation” under the Plan. § 766.303(3), Fla.
Stat....
CopyPublished | Florida 4th District Court of Appeal
...We
grant the petition. The trial court departed from the essential
requirements of law in allowing the case to proceed in violation of the
exclusiveness of remedy provision of the Florida Birth-Related Neurological
Injury Compensation Plan (NICA). See § 766.303(2), Fla....
...r. Siegfried is
compensable under NICA is critical because, if so, Dr. Siegfried may be
sued only if “there is clear and convincing evidence of bad faith or
malicious purpose or willful and wanton disregard of human rights, safety,
or property.” § 766.303(2), Fla....
...rights, safety, or property, provided that such suit is filed prior to
and in lieu of payment of an award under ss.
766.301-766.316.
Such suit shall be filed before the award of the division becomes
conclusive and binding as provided for in s.
766.311.
§
766.303(2) (emphasis added).
3 Plaintiffs have not conceded that the claim against Dr....
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 1448963, 2012 Fla. App. LEXIS 6544
...“If the administrative law judge ultimately determines that the claimant is entitled to compensation under the Plan, the claimant may not thereafter bring or continue a civil action, as such would violate the exclusiveness of remedy provisions of Section
766.303, Florida Statutes.” On November 22, 2010, in response to the motion to dismiss, Expósito filed with DOAH a petition for benefits pursuant to section
766.301 et seq., Florida Statutes (2010), a statutory scheme known as the “NICA...
...f such infant, her or his personal representative, parents, ... at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs.... ” *807 Section 766.303(2), Fla....
...If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under s.
766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s.
766.303....
...ht to qualify for a claim under the NICA statute. 8 *810 Nevertheless, the plain language of the statute requires an ALJ to make a determination of compensability (or non-compensability) before a cause of action may be maintained in circuit court. §§ 766.303-04, Fla....
...hts, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss.
766.301-766.316. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s.
766.311. §
766.303, Fla....
...ess records of Jackson Memorial Hospital, one of the appellants in this case. . The Florida Birth-Related Neurological Injury Compensation Association was created by the NICA statute and serves as the administrator of the NICA Plan. §§
766.302(1),
766.303(1), and
766.315, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 6000, 2005 WL 957593
...trial court lacked jurisdiction to lift the stay in the underlying claim for medical malpractice, since exclusive jurisdiction was with the administrative law judge and the appeal from that decision was timely filed. The NICA Plan provides the exclusive remedy for birth-related neurological injuries. See § 766.303(2), Fla....
