Fla. Stat. » 766
Florida Statutes

Fla. Stat. § 766.309 (2025)

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

✓ 2025 Florida Statutes — current through the 2025 Regular Session
Find cases: SyfertCases citing this section FL-LEGleg.state.fl.us JustiaFla. Statutes CornellLII Search CasesGoogle Scholar
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 Med. Ctr., Inc., 71 So. 3d 828 (Fla. 2011).
Sort: Relevance Newest Treatment
Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828 (Fla. 2011). · cites it 34× “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 Comp. Ass'n v. Florida Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 2007). · cites it 34× “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 Med. Ctr., Inc. v. Bennett, 27 So. 3d 65 (Fla. 1st DCA 2009). · cites it 34× “" § 766.309(1), Fla. Stat. The appellants, the various medical providers, argue that, given the presumption created by section 766.”
All Child.'s Hosp., Inc. v. Dept. of Admin. Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004). · cites it 9× “Section 766.309, Florida Statutes (1997)—which was not affected by the 1998 amendments—sets 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, 880 So. 2d 1253 (Fla. 1st DCA 2004). · cites it 4× “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 Comp. Ass'n, 788 So. 2d 1010 (Fla. 2d DCA 2001). · cites it 4× “§ 766.309(1)(b), Fla. Stat. (1999). See also § 766.”
Anderson Ex Rel. Anderson v. Helen Ellis Mem'l Hosp. Found., Inc., 66 So. 3d 1095 (Fla. 2d DCA 2011). · cites it 10× “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, 924 So. 2d 982 (Fla. 2d DCA 2006). · cites it 7× “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. Admin. Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002). · cites it 2× “[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, 997 So. 2d 426 (Fla. 5th DCA 2008). · cites it 3× “; 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, 40 So. 3d 18 (Fla. 5th DCA 2010). · cites it 2× “(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, 902 So. 2d 271 (Fla. 1st DCA 2005). · cites it 6× “" 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.”
Show all 42 citing cases →
— 766.309(1) — 12 cases
Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828 (Fla. 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 Comp. Ass'n v. Florida Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 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 Med. Ctr., Inc. v. Bennett, 27 So. 3d 65 (Fla. 1st DCA 2009). “" § 766.309(1), Fla. Stat. The appellants, the various medical providers, argue that, given the presumption created by section 766.”
All Child.'s Hosp., Inc. v. Dept. of Admin. Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004). “Section 766.309, Florida Statutes (1997)—which was not affected by the 1998 amendments—sets 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 Mem'l Hosp. Found., Inc., 66 So. 3d 1095 (Fla. 2d DCA 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 Med. Ctr., Inc., 71 So. 3d 828 (Fla. 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 Med. Ctr., Inc. v. Bennett, 27 So. 3d 65 (Fla. 1st DCA 2009). “" § 766.309(1), Fla. Stat. The appellants, the various medical providers, argue that, given the presumption created by section 766.”
Orlando Reg'l Healthcare v. Alexander, 909 So. 2d 582 (Fla. 5th DCA 2005).
Orhs v. Florida Birth-Related Neurological, 997 So. 2d 426 (Fla. 5th DCA 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 Child.'s Hosp., Inc. v. Dept. of Admin. Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004). “Section 766.309, Florida Statutes (1997)—which was not affected by the 1998 amendments—sets 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 Comp. Ass'n, 788 So. 2d 1010 (Fla. 2d DCA 2001). “§ 766.309(1)(b), Fla. Stat. (1999). See also § 766.”
All Child.'s Hosp., Inc. v. Dept. of Admin. Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004). “Section 766.309, Florida Statutes (1997)—which was not affected by the 1998 amendments—sets 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…”
Tarpon Springs Hosp. Found., Inc. v. Anderson, 34 So. 3d 742 (Fla. 2d DCA 2010).
Weinstock v. Houvardas, 924 So. 2d 982 (Fla. 2d DCA 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.”
Birth-related Inj. Comp. v. Div. Of Admin., 948 So. 2d 705 (Fla. 2007).
— 766.309(1)(c) — 6 cases
All Child.'s Hosp., Inc. v. Dept. of Admin. Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004). “Section 766.309, Florida Statutes (1997)—which was not affected by the 1998 amendments—sets 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 Mem'l Hosp. Found., Inc., 66 So. 3d 1095 (Fla. 2d DCA 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.”
Birth-related Inj. Comp. v. Div. Of Admin., 948 So. 2d 705 (Fla. 2007).
Shands Jacksonville Med. Ctr., Inc., & Univ. of Florida Bd. of Trs. (Fla. 1st DCA 2024).
Shands Jacksonville Med. Ctr., Inc., & Univ. of Florida Bd. of Trs. (Fla. 1st DCA 2024).
— 766.309(1)(d) — 4 cases
Shands Jacksonville Med. Ctr., Inc., & Univ. of Florida Bd. of Trs. (Fla. 1st DCA 2024).
Shands Jacksonville Med. Ctr., Inc., & Univ. of Florida Bd. of Trs. (Fla. 1st DCA 2024).
Shands Jacksonville Med. Ctr., Inc., & Univ. of Florida Bd. of Trs. (Fla. 1st DCA 2025).
Erica McDonald, as Parent & Nat. Guardian of J.M., a Minor v. Florida Birth-Related Neurological Injury Comp. Ass'n, & Florida Health Sciences Ctr., Inc. D/B/A Tampa Gen. Hosp.; & Univ. of South Florida Bd. of Trs. (Fla. 1st DCA 2024).
— 766.309(4) — 6 cases
Tabb Ex Rel. Tabb v. Florida Nica, 880 So. 2d 1253 (Fla. 1st DCA 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 Mem'l Hosp. Found., Inc., 66 So. 3d 1095 (Fla. 2d DCA 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 Comp. Ass'n v. Florida Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 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, 924 So. 2d 982 (Fla. 2d DCA 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.”
Erica McDonald, as Parent & Nat. Guardian of J.M., a Minor v. Florida Birth-Related Neurological Injury Comp. Ass'n, & Florida Health Sciences Ctr., Inc. D/B/A Tampa Gen. Hosp.; & Univ. of South Florida Bd. of Trs. (Fla. 1st DCA 2024).
— 766.309(l)(a) — 8 cases
Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828 (Fla. 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 Med. Ctr., Inc. v. Bennett, 27 So. 3d 65 (Fla. 1st DCA 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 Comp. Ass'n v. Florida Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 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 .”
Florida Birth-Related Neurological Injury Comp. Ass'n v. McKaughan, 668 So. 2d 974 (Fla. 1996).
Pediatrix Med. Grp. of Florida, Inc. v. Falconer, 31 So. 3d 310 (Fla. 4th DCA 2010).
— 766.309(l)(b) — 1 case
Florida Birth-Related Neurological Injury Comp. Ass'n v. Florida Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 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 Comp. Ass'n v. Florida Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 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
N.R. v. Florida Birth-Related Neurological Injury Comp. Ass'n, 143 So. 3d 463 (Fla. 5th DCA 2014).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.

This Florida statute resource is curated by Graham W. Syfert, a Jacksonville, Florida personal injury and workers' compensation attorney (Florida Bar No. 39104). Attorney Syfert regularly handles Chapter 766 matters in the context of medical malpractice litigation and represents clients throughout Northeast Florida. For legal consultation, call 904-383-7448.