766.309
Determination of claims; presumption; findings of administrative law judge binding on participants.
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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.
(c) How much compensation, if any, is awardable pursuant to s. 766.31.
(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.
Notes of Decisions
Cited in 42
cases (6 in the last 5 years), 1994–2025 · leading case: Bennett v. St. Vincent's Medical Center, Inc.
Bennett v. St. Vincent's Medical Center, Inc. (2011)
“The term "claimant" is defined in the statutory scheme and therefore section 766.309 should be read together with the definitional section of the same statutory scheme.”
Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings (2007)
“14 The Second District held that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine .”
St. Vincent's Medical Center, Inc. v. Bennett (2009)
“" § 766.309(1), Fla. Stat. The appellants, the various medical providers, argue that, given the presumption created by section 766.”
All Children's Hosp., Inc. v. Dept. of Admin. Hearings (2004)
“Section 766.309, Florida Statutes (1997)which was not affected by the 1998 amendmentssets forth the specific determinations the ALJ is required to make: (1) The administrative law judge shall make the following determinations based upon all available evidence: (a) Whether the…”
Tabb Ex Rel. Tabb v. FLORIDA NICA (2004)
“Appellant Tabb disagrees with these decisions and relies on language in section 766.309 [2] as well as recent decisions of the *1258 Second District Court of Appeal.”
Fluet v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION (2001)
“§ 766.309(1)(b), Fla. Stat. (1999). See also § 766.”
Anderson Ex Rel. Anderson v. Helen Ellis Memorial Hospital Foundation, Inc. (2011)
“304 requires the ALJ to make the necessary determinations under section 766.309, including the amount of any award, before the claimant may proceed with a civil action.”
Weinstock v. Houvardas (2006)
“304 no civil action may be brought until the determinations under section 766.309 have been made by the ALJ, who has exclusive jurisdiction to determine all claims.”
Gugelmin v. ADMINISTRATIVE HEARINGS (2002)
“[3] Section 766.309, Florida Statutes (1999) lists the three evidentiary issues that an administrative law judge is authorized to determine: (1) whether the injury claimed is a birth related neurological injury; (2) whether the obstetrical services were delivered by a…”
Orhs v. Florida Birth-Related Neurological (2008)
“; see §§ 766.309, 766.31, Fla. Stat. (2004). This Court's review of the ALJ's final order is governed by chapter 120, Florida Statutes (2007), the Administrative Procedure Act.”
Samples v. Florida Birth-Related Neurological (2010)
“(2) Pursuant to Section 766.309, Florida Statutes, the ALJ must make all NICA Awards, which includes the parental award pursuant to Section 766.”
Depart v. MacRi (2005)
“" The next sentence of that section directs the reader to section 766.309 for a list of the issues that must be resolved by the administrative law judge to reach a determination regarding compensability.”
— 766.309(1) — 12 cases
Bennett v. St. Vincent's Medical Center, Inc. (2011)
“The term "claimant" is defined in the statutory scheme and therefore section 766.309 should be read together with the definitional section of the same statutory scheme.”
Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings (2007)
“14 The Second District held that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine .”
St. Vincent's Medical Center, Inc. v. Bennett (2009)
“" § 766.309(1), Fla. Stat. The appellants, the various medical providers, argue that, given the presumption created by section 766.”
All Children's Hosp., Inc. v. Dept. of Admin. Hearings (2004)
“Section 766.309, Florida Statutes (1997)which was not affected by the 1998 amendmentssets forth the specific determinations the ALJ is required to make: (1) The administrative law judge shall make the following determinations based upon all available evidence: (a) Whether the…”
Anderson Ex Rel. Anderson v. Helen Ellis Memorial Hospital Foundation, Inc. (2011)
“304 requires the ALJ to make the necessary determinations under section 766.309, including the amount of any award, before the claimant may proceed with a civil action.”
— 766.309(1)(a) — 17 cases
Bennett v. St. Vincent's Medical Center, Inc. (2011)
“The term "claimant" is defined in the statutory scheme and therefore section 766.309 should be read together with the definitional section of the same statutory scheme.”
St. Vincent's Medical Center, Inc. v. Bennett (2009)
“" § 766.309(1), Fla. Stat. The appellants, the various medical providers, argue that, given the presumption created by section 766.”
Orhs v. Florida Birth-Related Neurological (2008)
“; see §§ 766.309, 766.31, Fla. Stat. (2004). This Court's review of the ALJ's final order is governed by chapter 120, Florida Statutes (2007), the Administrative Procedure Act.”
All Children's Hosp., Inc. v. Dept. of Admin. Hearings (2004)
“Section 766.309, Florida Statutes (1997)which was not affected by the 1998 amendmentssets forth the specific determinations the ALJ is required to make: (1) The administrative law judge shall make the following determinations based upon all available evidence: (a) Whether the…”
— 766.309(1)(b) — 6 cases
Fluet v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION (2001)
“§ 766.309(1)(b), Fla. Stat. (1999). See also § 766.”
All Children's Hosp., Inc. v. Dept. of Admin. Hearings (2004)
“Section 766.309, Florida Statutes (1997)which was not affected by the 1998 amendmentssets forth the specific determinations the ALJ is required to make: (1) The administrative law judge shall make the following determinations based upon all available evidence: (a) Whether the…”
Weinstock v. Houvardas (2006)
“304 no civil action may be brought until the determinations under section 766.309 have been made by the ALJ, who has exclusive jurisdiction to determine all claims.”
— 766.309(1)(c) — 6 cases
All Children's Hosp., Inc. v. Dept. of Admin. Hearings (2004)
“Section 766.309, Florida Statutes (1997)which was not affected by the 1998 amendmentssets forth the specific determinations the ALJ is required to make: (1) The administrative law judge shall make the following determinations based upon all available evidence: (a) Whether the…”
Anderson Ex Rel. Anderson v. Helen Ellis Memorial Hospital Foundation, Inc. (2011)
“304 requires the ALJ to make the necessary determinations under section 766.309, including the amount of any award, before the claimant may proceed with a civil action.”
— 766.309(1)(d) — 4 cases
— 766.309(4) — 6 cases
Tabb Ex Rel. Tabb v. FLORIDA NICA (2004)
“Appellant Tabb disagrees with these decisions and relies on language in section 766.309 [2] as well as recent decisions of the *1258 Second District Court of Appeal.”
Anderson Ex Rel. Anderson v. Helen Ellis Memorial Hospital Foundation, Inc. (2011)
“304 requires the ALJ to make the necessary determinations under section 766.309, including the amount of any award, before the claimant may proceed with a civil action.”
Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings (2007)
“14 The Second District held that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine .”
Weinstock v. Houvardas (2006)
“304 no civil action may be brought until the determinations under section 766.309 have been made by the ALJ, who has exclusive jurisdiction to determine all claims.”
— 766.309(l)(a) — 8 cases
Bennett v. St. Vincent's Medical Center, Inc. (2011)
“The term "claimant" is defined in the statutory scheme and therefore section 766.309 should be read together with the definitional section of the same statutory scheme.”
St. Vincent's Medical Center, Inc. v. Bennett (2009)
“" § 766.309(1), Fla. Stat. The appellants, the various medical providers, argue that, given the presumption created by section 766.”
Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings (2007)
“14 The Second District held that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine .”
— 766.309(l)(b) — 1 case
Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings (2007)
“14 The Second District held that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine .”
— 766.309(l)(c) — 1 case
Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings (2007)
“14 The Second District held that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine .”
— 766.309(l)(d) — 1 case
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