Florida Statute 766.31 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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F.S. 766.31

766.31 Administrative law judge awards for birth-related neurological injuries; notice of award.—

(1) Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the administrative law judge shall make an award providing compensation for the following items relative to such injury:

(a) Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. At a minimum, compensation must be provided for the following actual expenses:

1. A total annual benefit of up to $10,000 for immediate family members who reside with the infant for psychotherapeutic services obtained from providers licensed under chapter 490 or chapter 491.

2. For the life of the child, providing parents or legal guardians with a reliable method of transportation for the care of the child or reimbursing the cost of upgrading an existing vehicle to accommodate the child’s needs when it becomes medically necessary for wheelchair transportation. The mode of transportation must take into account the special accommodations required for the specific child. The plan may not limit such transportation assistance based on the child’s age or weight. The plan must replace any vans purchased by the plan every 7 years or 150,000 miles, whichever comes first.

3. Housing assistance of up to $100,000 for the life of the child, including home construction and modification costs.

(b) However, the following expenses are not subject to compensation:

1. Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law.

2. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity.

3. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law.

4. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program.

(c) Expenses included under paragraph (a) are limited to reasonable charges prevailing in the same community for similar treatment of injured persons when such treatment is paid for by the injured person. The parents or legal guardians receiving benefits under the plan may file a petition with the Division of Administrative Hearings to dispute the amount of actual expenses reimbursed or a denial of reimbursement.

(d)1.a. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award may not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Beginning on January 1, 2021, the award may not exceed $250,000, and each January 1 thereafter, the maximum award authorized under this paragraph shall increase by 3 percent.

b. Parents or legal guardians who received an award pursuant to this section before January 1, 2021, must receive a retroactive payment in an amount sufficient to bring the total award paid to the parents or legal guardians pursuant to sub-subparagraph a. to $250,000. This additional payment may be made in a lump sum or in periodic payments as designated by the parents or legal guardians and must be paid by July 1, 2021.

2.a. Death benefit for the infant in an amount of $50,000.

b. Parents or legal guardians who received an award pursuant to this section, and whose child died since the inception of the program, must receive a retroactive payment in an amount sufficient to bring the total award paid to the parents or legal guardians pursuant to sub-subparagraph a. to $50,000. This additional payment may be made in a lump sum or in periodic payments as designated by the parents or legal guardians and must be paid by July 1, 2021.

(e) Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney’s fees, which shall be subject to the approval and award of the administrative law judge. In determining an award for attorney’s fees, the administrative law judge shall consider the following factors:

1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly.

2. The fee customarily charged in the locality for similar legal services.

3. The time limitations imposed by the claimant or the circumstances.

4. The nature and length of the professional relationship with the claimant.

5. The experience, reputation, and ability of the lawyer or lawyers performing services.

6. The contingency or certainty of a fee.

Should there be a final determination of compensability, and the claimants accept an award under this section, the claimants are not liable for any expenses, including attorney fees, incurred in connection with the filing of a claim under ss. 766.301-766.316 other than those expenses awarded under this section.

(2) The award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.

(3) A copy of the award shall be sent immediately by registered or certified mail to each person served with a copy of the petition under s. 766.305(2).

History.—s. 69, ch. 88-1; s. 5, ch. 89-186; s. 22, ch. 91-46; s. 4, ch. 94-106; s. 313, ch. 96-410; s. 150, ch. 2001-277; s. 6, ch. 2002-401; s. 78, ch. 2003-416; s. 3, ch. 2021-134; s. 23, ch. 2022-71.

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Amendments to 766.31

Arrestable Offenses / Crimes under Fla. Stat. 766.31

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

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 766.31.

Annotations, Discussions, Cases:

Cases Citing Statute 766.31

Total Results: 20

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

Court: Fla. Dist. Ct. App. | Date Filed: 2016-12-30T00:00:00-08:00

Citation: 206 So. 3d 845, 2016 Fla. App. LEXIS 19341

Snippet: interpretation of the NICA-related attorneys’ fee statute, § 766.31, Fla. Stat., where the parties agreed that this…being submitted for payment by NICA under Statute 766.31, F.S.” In this case, the parties did not resolve…ALJ in an administrative proceeding pursuant to § 766.31. The process the parties adopted from § 766.301…addresses attorneys’ fees and costs explicitly in § 766.31, the statute identified on the claim form submitted…than those expenses awarded under this section. § 766.31(l)(c), Fla. Stat. In this case, Appellants’ fees

Putnam Community Medical Center v. Florida Birth-Related NeuroLogical Injury Compensation Ass'n

Court: Fla. Dist. Ct. App. | Date Filed: 2016-12-05T00:00:00-08:00

Citation: 204 So. 3d 598, 2016 Fla. App. LEXIS 17937

Snippet: constitutionality [on equal protection grounds] of section 766.31(l)(b)l[, which grants a single award of 100k regardless

Univeristy of Miami, School of Medicine v. Ruiz

Court: Fla. Dist. Ct. App. | Date Filed: 2015-05-27T00:00:00-07:00

Citation: 164 So. 3d 758, 2015 Fla. App. LEXIS 7980

Snippet: and future medical care costs. See § 766.31, Fla. Stat. (1998). The ALJ also specifically found…the NICA claim, including attorney's fees, § 766.31(l)(c). These remedies are provided regardless of

University of Miami, School of Medicine v. Ruiz

Court: Fla. Dist. Ct. App. | Date Filed: 2015-02-10T23:53:00-08:00

Snippet: attorney’s fees and future medical care costs. See § 766.31, Fla. Stat. (1998). The ALJ also specifically …care and related costs for the child’s lifetime, § 766.31(1)(a), a payment to the child’s parents of up to…to $100,000 if living or $10,000 if deceased, § 766.31(1)(b), and reasonable expenses incurred in filing…filing the NICA claim, including attorney’s fees, § 766.31(1)(c). These remedies are provided regardless of

Schwartz v. State

Court: Fla. Dist. Ct. App. | Date Filed: 2013-05-29T00:00:00-07:00

Citation: 125 So. 3d 946, 2013 WL 2320829, 2013 Fla. App. LEXIS 8457

Snippet: Giglio v. U.S., 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). The state may not knowingly

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

Court: Fla. | Date Filed: 2013-05-16T00:00:00-07:00

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

Snippet: section 766.31(l)(a) and reasonable attorney’s fees and other expenses pursuant to section 766.31(l)(c).…District upheld the constitutionality of section 766.31(l)(b)l, Florida Statutes (2010), which provides…public importance: Does the limitation in section 766.31(l)(b)l., Florida Statutes, of a single award of…the amount of parental compensation under section 766.31(l)(b)l. NICA agreed to make a lump sum payment …interpretation and constitutionality of section 766.31(l)(b)l. The ALJ approved the stipulation and afforded

Ferguson v. State

Court: Fla. Dist. Ct. App. | Date Filed: 2012-10-31T00:00:00-07:00

Citation: 101 So. 3d 895, 2012 Fla. App. LEXIS 18972, 2012 WL 5349384

Snippet: Giglio v. U.S., 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), knowing use of perjured testimony

University of Miami v. Exposito ex rel. Gonzales

Court: Fla. Dist. Ct. App. | Date Filed: 2012-04-27T00:00:00-07:00

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

Snippet: if the claimant accepts an award issued under s. 766.31, no civil action may be brought or continued in…requesting payment of expenses as set forth in section 766.31(a), Expósito never alleged that baby Stephanie

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

Court: Fla. Dist. Ct. App. | Date Filed: 2011-08-19T00:00:00-07:00

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

Snippet: the Plan] will provide pursuant to Fla. Stat. § 766.31 [(2004)] (`a bird in the hand') versus pursuing…compensation, if any, is awardable pursuant to s. 766.31. *1099 In addition, the ALJ has exclusive jurisdiction…766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative…766.311, prior to issuance of an award pursuant to s. 766.31. (Emphasis added.) Thus the authorization in section

Orlando Regional Healthcare System, Inc. v. Gwyn

Court: Fla. Dist. Ct. App. | Date Filed: 2011-02-04T00:00:00-08:00

Citation: 53 So. 3d 385, 2011 Fla. App. LEXIS 1081, 2011 WL 335401

Snippet: on amounts recoverable by claimants (see section 766.31). In essence, NICA was intended to establish a …the following items relative to such injury ... § 766.31(1) (emphasis added); see also Calixte v. Fla. Birth-Related

Samples v. Florida Birth-Related Neurological

Court: Fla. Dist. Ct. App. | Date Filed: 2010-06-18T00:00:00-07:00

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

Snippet: section 766.31(1)(a) and reasonable attorney's fees and other expenses pursuant to section 766.31(1)(…, in parental compensation, pursuant to section 766.31(1)(b)1., Florida Statutes (2007). That section …the amount of parental compensation under section 766.31(1)(b)1. NICA agreed to make a lump sum payment …interpretation and constitutionality of section 766.31(1)(b)1. The ALJ approved the stipulation and afforded…perceived pertinent to the interpretation of section 766.31(1)(b)1. The parties filed a Joint Pre-Hearing Stipulation

PEDIATRIX MEDICAL GROUP OF FLA. v. Falconer

Court: Fla. Dist. Ct. App. | Date Filed: 2010-04-07T00:53:00-07:00

Citation: 31 So. 3d 310

Snippet: if the claimant accepts an award issued under § 766.31, no civil action may be brought or continued in

Pediatrix Medical Group of Florida, Inc. v. Falconer

Court: Fla. Dist. Ct. App. | Date Filed: 2010-04-07T00:00:00-07:00

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

Snippet: if the claimant accepts an award issued under § 766.31, no civil action may be brought or continued in

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

Court: Fla. Dist. Ct. App. | Date Filed: 2009-08-21T00:00:00-07:00

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

Snippet: under the NICA Plan. See §§ 766.303, 766.309, and 766.31, Fla. Stat. When considering whether a claimed

Rodriguez v. BIRTH-REL. NEUROLOGICAL INJURY

Court: Fla. Dist. Ct. App. | Date Filed: 2009-06-24T00:53:00-07:00

Citation: 19 So. 3d 386

Snippet: motions for fees and costs pursuant to section 766.31(1)(c). That section provides for the recovery of…entitled to recover their fees and costs under section 766.31(1)(c), their claims for fees and costs under sections

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

Court: Fla. Dist. Ct. App. | Date Filed: 2009-06-24T00:00:00-07:00

Citation: 19 So. 3d 386, 2009 Fla. App. LEXIS 8630, 2009 WL 1815395

Snippet: motions for fees and costs pursuant to section 766.31(l)(c). That section provides for the recovery of…entitled to recover their fees and costs under section 766.31(l)(c), their claims for fees and costs under sections

Orhs v. Florida Birth-Related Neurological

Court: Fla. Dist. Ct. App. | Date Filed: 2008-10-31T00:00:00-07:00

Citation: 997 So. 2d 426

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

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

Court: Fla. | Date Filed: 2007-01-11T00:00:00-08:00

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

Snippet: without any regard for fault. §§ 766.309(l)(c), 766.31(1), Fla. Stat. (1997). If the ALJ determines that…766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative…766.311, prior to issuance of an award pursuant to s. 766.31. Ch. 03-416, § 77, at 4117, Laws of Fla. In passing…766.311, prior to issuance of an award pursuant to s. 766.31.” When the Second District decided Ferguson, it

BIRTH-RELATED INJ. COMP. v. Div. of Admin.

Court: Fla. | Date Filed: 2007-01-10T23:53:00-08:00

Citation: 948 So. 2d 705

Snippet: without any regard for fault. §§ 766.309(1)(c), 766.31(1), Fla. Stat. (1997). If the ALJ determines that…766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative…766.311, prior to issuance of an award pursuant to s. 766.31. Ch. 03-416, § 77, at 4117, Laws of Fla. In passing…766.311, prior to issuance of an award pursuant to s. 766.31." When the Second District decided Ferguson

Matteini v. Florida Birth-Related Neurological

Court: Fla. Dist. Ct. App. | Date Filed: 2006-12-08T00:00:00-08:00

Citation: 946 So. 2d 1092, 2006 Fla. App. LEXIS 20576, 2006 WL 3523624

Snippet: qualifies for financial benefits. Id.; see §§ 766.309, 766.31, Fla. Stat. (2005). As required by the statutory