Florida Statute 766.309 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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F.S. 766.309

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

Arrestable Offenses / Crimes under Fla. Stat. 766.309

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 766.309.

Annotations, Discussions, Cases:

Cases Citing Statute 766.309

Total Results: 20

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

Court: District Court of Appeal of Florida | Date Filed: 2024-12-11

Snippet: 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

Court: District Court of Appeal of Florida | Date Filed: 2024-12-11

Snippet: 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

Court: District Court of Appeal of Florida | Date Filed: 2024-11-20

Snippet: under the NICA Plan, in addition to section 766.309(1), the ALJ must determine in section 766.316

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

Court: District Court of Appeal of Florida | Date Filed: 2024-08-14

Snippet: may be brought until the determinations under s. 766.309 have been made by the [ALJ].”). Pursuant to

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

Court: District Court of Appeal of Florida | Date Filed: 2024-02-23

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

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

Court: District Court of Appeal of Florida | Date Filed: 2014-07-25

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

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

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

Court: Supreme Court of Florida | Date Filed: 2013-05-16

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

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

University of Miami v. Exposito ex rel. Gonzales

Court: District Court of Appeal of Florida | Date Filed: 2012-04-27

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

Snippet: may be brought until the determinations under s. 766.309 have been made by the administrative law judge

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

Court: District Court of Appeal of Florida | Date Filed: 2011-08-19

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

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

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

Court: Supreme Court of Florida | Date Filed: 2011-07-07

Citation: 71 So. 3d 828, 2011 WL 2637444

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

Samples v. Florida Birth-Related Neurological

Court: District Court of Appeal of Florida | Date Filed: 2010-06-18

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

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

Tarpon Springs Hospital Foundation, Inc. v. Anderson

Court: District Court of Appeal of Florida | Date Filed: 2010-04-21

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

Snippet: 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

Court: District Court of Appeal of Florida | Date Filed: 2010-04-07

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

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

PEDIATRIX MEDICAL GROUP OF FLA. v. Falconer

Court: District Court of Appeal of Florida | Date Filed: 2010-04-07

Citation: 31 So. 3d 310

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

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

Court: District Court of Appeal of Florida | Date Filed: 2009-08-21

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

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

Macri v. Clements & Ashmore, P.A.

Court: District Court of Appeal of Florida | Date Filed: 2009-07-16

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

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

MacRi v. CLEMENTS AND ASHMORE, PA

Court: District Court of Appeal of Florida | Date Filed: 2009-07-16

Citation: 15 So. 3d 762, 2009 WL 2048919

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

Orhs v. Florida Birth-Related Neurological

Court: District Court of Appeal of Florida | Date Filed: 2008-10-31

Citation: 997 So. 2d 426, 2008 WL 4753729

Snippet: qualifies for financial benefits. Id.; see §§ 766.309, 766.31, Fla. Stat. (2004). This Court's review

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

Court: District Court of Appeal of Florida | Date Filed: 2008-01-16

Citation: 989 So. 2d 2

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

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

Court: Supreme Court of Florida | Date Filed: 2007-01-11

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

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