Florida Statute 766.309 - Full Text and Legal Analysis

The 2025 Florida Statutes

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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766.309 Determination of claims; presumption; findings of administrative law judge binding on participants.—

(1) The administrative law judge shall make the following determinations based upon all available evidence:

(a) Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2).

(b) Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.

(d) Whether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s. 766.316 are satisfied. The administrative law judge has the exclusive jurisdiction to make these factual determinations.

(2) If the administrative law judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at the birth, she or he shall enter an order and shall cause a copy of such order to be sent immediately to the parties by registered or certified mail.

(3) By becoming a participating physician, a physician shall be bound for all purposes by the finding of the administrative law judge or any appeal therefrom with respect to whether such injury is a birth-related neurological injury.

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

History.—s. 68, ch. 88-1; s. 4, ch. 89-186; s. 21, ch. 91-46; s. 3, ch. 94-106; s. 312, ch. 96-410; s. 1805, ch. 97-102; s. 77, ch. 2003-416; s. 1, ch. 2006-8.

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Amendments to 766.309

Annotations, Discussions, Cases:

Cases Citing Statute 766.309

Total Results: 42

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

supervision of a "participating physician." Id. § 766.309, 766.31. The Compensation Act defines both the

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

First District incorrectly held that under section 766.309(1)(a), Florida Statutes (2001), the rebuttable

FLA., BIRTH-RELATED NICA v. McKaughan

668 So. 2d 974

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

Cited 16 times | Published

claimed is a birth-related neurological injury. Id. § 766.309(1)(a). If the hearing officer finds that the statutory

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

findings "based upon all available evidence." § 766.309(1), Fla. Stat. (1997). First, the ALJ must determine

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

were delivered by a participating physician. § 766.309. Under the Plan, a "birth-related neurological

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

766.303. § 766.304, Fla. Stat. (Supp.1998). Section 766.309, Florida Statutes (1997)which was not affected

Gugelmin v. ADMINISTRATIVE HEARINGS

815 So. 2d 764, 2002 WL 885235

District Court of Appeal of Florida | Filed: May 8, 2002 | Docket: 1278051

Cited 12 times | Published

NICA's estimate of the value of their claim.[3] Section 766.309, Florida Statutes (1999) lists the three evidentiary

Tabb Ex Rel. Tabb v. FLORIDA NICA

880 So. 2d 1253, 2004 WL 1920005

District Court of Appeal of Florida | Filed: Aug 30, 2004 | Docket: 1294959

Cited 10 times | Published

Legislature amended the NICA statute to add section 766.309(4), Florida Statutes: If it is in the interest

Fluet v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

788 So. 2d 1010, 2001 WL 220009

District Court of Appeal of Florida | Filed: Mar 7, 2001 | Docket: 1685169

Cited 10 times | Published

immediate postdelivery period in a hospital. § 766.309(1)(b), Fla. Stat. (1999). See also § 766.31, Fla

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

determinations under § 766.309 have been made by the administrative law judge"); § 766.309(1)(a) (requiring

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

injury is a birth-related neurological injury. § 766.309(1)(a), Fla. Stat. (2007). Clearly, Harper experienced

FLA. HEALTH SCIENCES CENTER, INC. v. Div. of Admin. Hearings

871 So. 2d 1062

District Court of Appeal of Florida | Filed: May 12, 2004 | Docket: 1300427

Cited 5 times | Published

"shall hear and determine all [NICA] claims." Section 766.309 more specifically provides: (1) The administrative

Romine v. FLORIDA BIRTH RELATED NICA

842 So. 2d 148, 2003 WL 327530

District Court of Appeal of Florida | Filed: Feb 14, 2003 | Docket: 1730578

Cited 5 times | Published

compensation, if any, awardable under the statute. § 766.309, Fla. Stat. (1999). Thus, although section 766

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

subsequent approval of the ALJ. (2) Pursuant to Section 766.309, Florida Statutes, the ALJ must make all NICA

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

disagree. The ALJ recognized that, pursuant to section 766.309(1)(a) of the Florida Statutes, once it is established

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

at the time of the injury. See id.; see also § 766.309(1)(b). Further, a hospital's obligation to give

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

determinations under § 766.309 have been made by the administrative law judge”); § 766.309(l)(a) (requiring

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

989 So. 2d 2, 2008 WL 142308

District Court of Appeal of Florida | Filed: Jan 16, 2008 | Docket: 1665407

Cited 3 times | Published

determination concerning compensability under section 766.309. The order on appeal is reversed, and the case

Weinstock v. Houvardas

924 So. 2d 982, 2006 WL 931588

District Court of Appeal of Florida | Filed: Apr 12, 2006 | Docket: 1735948

Cited 3 times | Published

be brought until the determinations under section 766.309 have been made by the ALJ, who has exclusive

FLORIDA BIRTH-RELATED NICA v. Ferguson

869 So. 2d 686, 2004 WL 690565

District Court of Appeal of Florida | Filed: Apr 2, 2004 | Docket: 1174897

Cited 3 times | Published

was delivered by a participating physician. See § 766.309. If these two questions are answered in the affirmative

Anderson Ex Rel. Anderson v. Helen Ellis Memorial Hospital Foundation, Inc.

66 So. 3d 1095, 2011 Fla. App. LEXIS 13083, 2011 WL 3629352

District Court of Appeal of Florida | Filed: Aug 19, 2011 | Docket: 1912956

Cited 2 times | Published

under the Plan. In making that determination, section 766.309(1) requires the ALJ to make the following findings:

Bayfront v. Nica

893 So. 2d 636

District Court of Appeal of Florida | Filed: Feb 16, 2005 | Docket: 1720834

Cited 2 times | Published

authority as limited by our prior decision. See also § 766.309, Fla. Stat. (1997). The inclusion of this finding

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

apply the rebuttable presumption provided by section 766.309(1)(a), Florida Statutes (2001), we reverse

MacRi v. CLEMENTS AND ASHMORE, PA

15 So. 3d 762, 2009 WL 2048919

District Court of Appeal of Florida | Filed: Jul 16, 2009 | Docket: 1660428

Cited 1 times | Published

seeking the necessary determinations under section 766.309, Florida Statutes, regarding the applicability

Macri v. Clements & Ashmore, P.A.

15 So. 3d 762, 2009 Fla. App. LEXIS 9699

District Court of Appeal of Florida | Filed: Jul 16, 2009 | Docket: 60244143

Cited 1 times | Published

seeking the necessary determinations under section 766.309, Florida Statutes, regarding the applicability

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

responsibilities of the ALJ are succinctly set forth in section 766.309. The ALJ must address the two basic questions

Rinella v. Abifaraj

908 So. 2d 1126, 2005 Fla. App. LEXIS 12192, 2005 WL 1832017

District Court of Appeal of Florida | Filed: Aug 4, 2005 | Docket: 64840015

Cited 1 times | Published

plan benefits is compensable and references section 766.309 for a list of issues that the ALJ must decide

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

sentence of that section directs the reader to section 766.309 for a list of the issues that must be resolved

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

claimed is a birth-related neurological injury. Id. § 766.309(l)(a). If the hearing officer finds that the statutory

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

claimed is a birth-related neurological injury. Id. § 766.309(l)(a). If the hearing officer finds that the statutory

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

exempted) for the year in which the BRNI occurred. § 766.309(1), Fla. Stat.; see also § 766.302(7), Fla. Stat

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

exempted) for the year in which the BRNI occurred. § 766.309(1), Fla. Stat.; see also § 766.302(7), Fla. Stat

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

exempted) for the year in which the BRNI occurred. § 766.309(1), Fla. Stat.; see also § 766.302(7), Fla. Stat

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

awarded under the NICA Plan, in addition to section 766.309(1), the ALJ must determine in section 766

Sylvia Siegfried, M.D. v. Yanara Avila-Cana

District Court of Appeal of Florida | Filed: Aug 14, 2024 | Docket: 69042411

Published

immediate postdelivery period in a hospital.” § 766.309(1)(b), Fla. Stat. (2016). A plaintiff may not

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

of a “birth-related neurological injury.” See § 766.309(1)(a), Fla. Stat. “An ALJ’s interpretation of

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

143 So. 3d 463, 2014 WL 3671331, 2014 Fla. App. LEXIS 11370

District Court of Appeal of Florida | Filed: Jul 25, 2014 | Docket: 60242326

Published

determine when that relationship was formed. See § 766.309(l)(d), Fla. Stat. (2011) (“The administrative

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

subsequent approval of the ALJ. *915(2) Pursuant to section 766.309, Florida Statutes, the ALJ must make all NICA

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

should find her claim was not compensable under section 766.309, because (as Expósito candidly conceded in

Florida Health Sciences Center, Inc. v. Division of Administrative Hearings

871 So. 2d 1062, 2004 Fla. App. LEXIS 6620, 2004 WL 1057684

District Court of Appeal of Florida | Filed: May 12, 2004 | Docket: 64830144

Published

“shall hear and determine all [NICA] claims.” Section 766.309 more specifically provides: (1) The administrative

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

by the ALJ. I find of particular importance section 766.309(1)(a), which provides in pertinent part that:

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

that they are not entitled to such benefits. Section 766.309(l)(a). The medical malpractice defendants,

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.