CopyCited 59 times | Published | Court of Appeals for the Eleventh Circuit | 82 Fed. R. Serv. 3d 503, 2012 WL 1581334, 2012 U.S. App. LEXIS 9334
...common law and
statutory law.” Id. §
766.304.
Awards paid through the no-fault compensation plan are funded by
assessments on physicians and hospitals that provide obstetric services. Id. §
5
766.314(1), (4). All hospitals licensed in Florida are required to pay assessments
based on the number of infants delivered in the hospital. Id. §
766.314(4)(a).
Physicians who elect to participate in the plan must pay an assessment of $5,000
annually. Id. §
766.314(4)(c), (5)(a)....
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CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2004 WL 57230
...1). A detailed definition of "[b]irth-related neurological injury" is set forth in section
766.302(2); "[p]articipating physician" is defined in section
766.302(7). A scheme of assessments on physicians and hospitals to fund the plan is set forth in section
766.314....
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Cited as authorityAnderson (2010)phrase: "rule_authority"
CopyCited 10 times | Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 104, 1992 Fla. LEXIS 210, 1992 WL 24975
...Counsel of Florida Medical Ass'n, amicus curiae for Drs. James T. McGibony, Joseph Von Thron, Mark D. Ziffer and William Barfield. PER CURIAM. We have for review McGibony v. Florida Birth-Related Neurological Injury Compensation Plan,
564 So.2d 177 (Fla. 1st DCA 1990), which expressly declared section
766.314, Florida Statutes (1989), to be valid....
...of neurological injuries suffered by infants at birth. However, obstetricians are not required to join the Plan, and insurance thus is available only if the obstetrician has elected to join. Those who join pay an annual assessment of at least $5000. § 766.314(4)(c), Fla. Stat. (1989). To further fund the Plan, the statute imposes on all licensed physicians, not merely obstetricians, a mandatory annual assessment of $250. § 766.314(4)(b), Fla. Stat. (1989). Although not at issue in this case, licensed hospitals also are assessed $50 per infant delivered. § 766.314(4)(a), Fla. Stat. (1989). These amounts can be increased by action of the Plan whenever it finds that the Plan cannot otherwise be maintained on an "actuarially sound" basis, subject to oversight by the Department of Insurance. § 766.314(5), (7), Fla....
...Here, the $250 assessment is levied upon physicians to support a governmental enterprise, i.e., a state-created system for compensating certain individuals for certain types of birth-related injuries. The assessment is collected under authority of state law, and the Plan can sue to enforce the assessment. § 766.314(6)(b)1, Fla....
...obstetricians, the legislature recognized this by assessing them only $250 as compared to $5000. We also do not believe that the statute at issue constitutes an impermissible delegation of legislative authority to tax to the Department of Insurance. Section 766.314(7)(b), Florida Statutes (1989), reads as follows: (b) If the Department of Insurance finds that the plan cannot be maintained on an actuarially sound basis based on the assessments and appropriations listed in subsections (4) and (5),...
...standard. Likewise, such specific criteria for the charging of fees which may have been included in that statute were totally unrelated to the question of what was meant by actuarial soundness. Further, we reject the contention that the amendment to section 766.314 contained in chapter 89-186, Laws of Florida, means that the amount of any additional assessments is to be determined by the Florida Birth-Related Neurological Injury Compensation Association rather than the Department of Insurance. Section 766.314(2) provides that the association shall submit to the Department of Insurance for review a plan of operation which includes provisions for the assessment of the physicians. The plan of operation and any amendments to the plan are subject to the *948 approval of the Department of Insurance. Section 766.314(5)(a) provides that "the association shall determine the amount of additional assessments necessary pursuant to subsection (7), in the manner required by the plan of operation, subject to any increase determined to be necessary by the Department of Insurance pursuant to paragraph (7)(b)." Section 766.314(7)(b) clearly places the decision concerning the need for an increase upon the Department of Insurance....
...1981) (statute shall not be stricken as an unconstitutional delegation of powers where it is susceptible to a constitutional interpretation). Finally, we do not find the statute to be in violation of the Privileges and Immunities Clause of the Fourteenth Amendment to the United States Constitution. Under section 766.314(4)(b), all physicians licensed under chapters 458 and 459, Florida Statutes (1989), except obstetricians, are subject to an equal assessment of $250....
...te. The fact that a nonresident may receive less benefit from the assessment is simply a result of the decision to live outside the state of Florida. The remaining attacks against the statute are without merit and need not be discussed. We hold that section 766.314 is constitutionally valid and approve the decision below....
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CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2001 WL 220009
...[2] In this case, Morton Plant Hospital was not a teaching hospital. In addition, the nurse midwives in this case had not paid assessments to NICA. If they had, they would be treated like "participating physicians" *1012 because they were "supervised by a participating physician." See § 766.314(4)(c), Fla....
...The administrative law judge interpreted the statute to require the participating physician to "deliver" a baby, rather than to "deliver" obstetrical services in the course of the "delivery" of a baby. Moreover, the administrative law judge mistakenly concluded that the language in section 766.314(4)(c), which treats a participating nurse midwife like a participating physician, prevented a physician who supervised a nonparticipating midwife from "delivering" services during the delivery of the baby....
...Indeed, a consultation like the one held in this case may expose a physician to liability if negligently performed. See, e.g., Tysinger v. Smisson, 176 Ga.App. 604, 337 S.E.2d 49 (1985). [5] The involvement of a nurse midwife in this case tends to unnecessarily confuse the analysis. Section 766.314(4)(c) provides, in part, that a nurse midwife may become a "participating physician" if supervised by a participating physician....
...Hypothetically, if the participating physician had been called by a nonparticipating physician for a consult about the decision to administer Pitocin, the legal issue would be the same, without the confusion created by the involvement of the midwife and section 766.314(4)(c)....
...evidence regarding only whether obstetrical services were delivered by a participating physician. Therefore, the administrative law judge made no finding as to whether the injury suffered by the infant was a "birth-related neurological injury." [3] Section 766.314(4)(c), Florida Statutes (1999) provides, in part: Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised b...
0 red0 yellow6 green0 procedural
Cited as authoritySamples (2010)phrase: "rule_authority"
Cited as authorityAnderson (2010)phrase: "rule_authority"
Cited as authorityBennett (2009)phrase: "rule_authority"
CopyCited 14 times | Published | Florida 2nd District Court of Appeal
...ent of claims on behalf of the Plan. §
766.315. To fund the Plan, which the Florida Supreme Court has compared to a form of insurance supported by a tax, the legislature imposed mandatory yearly assessments on all licensed physicians and hospitals. §
766.314(4)(a)(b); Coy v. Florida Birth-Related Neurological Compensation Plan,
595 So.2d 943 (Fla. 1992) (upholding constitutionality of section
766.314). [2] As noted in Coy, "obstetricians are not required to join the Plan, and insurance thus is available only if the obstetrician has elected to join."
595 So.2d at 944. Obstetricians who decide to participate pay a much higher assessment. §
766.314(4)(c)....
...Associates, Inc., were intervenors below. [2] To maintain the Plan on an "acturarially sound basis," funds are also derived in part from the Insurance Commissioner's Regulatory Trust Fund and, in certain circumstances, casualty insurance companies. § 766.314(5)(b)(c)....
1 red1 yellow14 green0 procedural
SupersededSamples (2010)phrase: "superseded by"
LimitedFerguson (2004)phrase: "limited by"
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 8763, 2010 WL 2425998
...The Legislature expressly stated that it intended to provide a " limited system of compensation...." §
766.301(d), Fla. Stat. (2007) (emphasis added). The Plan also contains specific provisions relating to actuarial soundness. For example, on the assessment side of the equation, sections
766.314(5)(b) and (c) provide that if existing assessments are insufficient to maintain the NICA fund on an "actuarially sound" basis, additional appropriations are authorized. On the compensation side, section
766.314(9)(c) provides that if funds on hand are insufficient to cover anticipated expenses, NICA "shall not accept any new claims without express authority from the Legislature." If a claim is not accepted because of the above provision, the Plan ceases to be the exclusive remedy. §
766.314(9)(d), Fla....
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Cited as authorityMiles (2016)phrase: "rule_authority"
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2008 WL 140806
...The Plan provides for the payment of claims without the necessity of proving fault. §
766.303(1). The Plan is funded by assessments levied against all physicians licensed to practice in the state and all hospitals licensed under chapter 395, Florida Statutes. §
766.314(4). However, physicians who choose to participate in the coverage provided by the Plan are *707 required to pay an additional annual assessment. §
766.314(4), (5)....
...ould not have chosen to seek services at a hospital that was not covered by the Plan. The statute does not provide any hospital with the option of participating or declining to participate in the Plan; rather, all hospitals are assessed equally. See § 766.314(4)(a), (5)(a)....
...The unstated but intended result is that the participating physician may either reduce or eliminate his malpractice coverage for neurological birth-related injuries by choosing to participate in the Plan and pay the higher assessments described in section 766.314....
...NOTES [1] §§
766.301-.316, Fla. Stat. (1997). [2] See §
766.316 ("Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s.
766.314(4)(c) ....
0 red2 yellow1 green0 procedural
LimitedDah (2010)phrase: "limited by"
Cited "but see"Coble (2008)phrase: "but see"
Cited as authorityDah (2010)phrase: "rule_authority"
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...of resident physicians and an attending board-certified obstetrician/gynecologist, all employed by the Board. Each attending physician was a NICA participating physician. Each resident physician was deemed an NICA participating physician pursuant to section 766.314(4)(c), Florida Statutes (1989)....
...required to comply with the following notice requirement: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1994 WL 45168
...Under the NICA statute, the financial benefits include expenses for care and treatment, as well as periodic payments to the parents or guardians. Id. §
766.31(1)(a), (b). The funds for these financial benefits are obtained from assessments on physicians and hospitals. Id. §
766.314....
0 red0 yellow4 green0 procedural
Cited as authorityLampert (2016)phrase: "rule_authority"
Cited as authorityWolentarski (2009)phrase: "rule_authority"
Cited as authorityRomine (2003)phrase: "rule_authority"
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 5257, 2010 WL 1563544
...Nevertheless, the ALJ concluded that she "failed to establish that [she] was a `participating physician' at the time of [the child's] birth" because she could not produce the final draft of the Guidelines or the protocols that she had filed with the Board of Nursing to prove that the prearranged plan of treatment required by section 766.314(4)(c), Florida Statutes (2004), existed....
...[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action...."). III. NURSE HILDERBRANDT'S PREARRANGED PLAN OF TREATMENT A. The Parties' Arguments Nurse Hilderbrandt and NICA contend that the ALJ ignored the plain language of section
766.314(4)(c) and instead "created additional and burdensome requirements that do not exist." They argue that the ALJ improperly required proof of a written protocol to establish the existence of the prearranged plan of treatment required by section
766.314(4)(c). In response, the Andersons claim that the ALJ correctly interpreted section
766.314(4)(c) as requiring proof of a written protocol because the Nurse Practice Act, §§
464.001-.027, Fla. Stat. (2004), and rule 64B9-4.010 permit certified nurse midwives to practice only if they are supervised by a licensed physician and governed by a written protocol filed with the Board of Nursing. B. The ALJ's Interpretation of Section
766.314 The Plan treats certified nurse midwives as "participating physicians" if two conditions are met. First, nurse midwives must pay "50 percent of the physician assessment required by [the Plan]." §
766.314(4)(c)....
...by a participating physician who would be easily available. But the ALJ ruled that Nurse Hilderbrandt did not have a prearranged plan of treatment based on her "failure to offer the [written] protocols she claimed were in place." The ALJ interpreted section 766.314(4)(c) to require proof that the prearranged plan of treatment was reduced to writing. We conclude that the ALJ's interpretation of section 766.314(4)(c) was erroneous....
...To do so would be an abrogation of legislative power." Id. (emphasis omitted) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams,
212 So.2d 777, 778 (Fla. 1st DCA 1968)). The ALJ interpreted "prearranged plan of treatment" as a written document. However, the plain language of section
766.314(4)(c) does not indicate that the prearranged plan of treatment must be in writing....
...State,
802 So.2d 281, 286 (Fla. 2001). The dictionary definitions of the words "prearrange," [6] "plan," [7] and "treatment" [8] do not lend support to the ALJ's interpretation of the statute as requiring a written document. Thus, based on the plain language of section
766.314(4)(c), a "prearranged plan of treatment" is not required to be a written document. The Andersons' argument that section
766.314(4)(c) should be interpreted in light of the Nurse Practice Act and rule 64B9-4.010 is unpersuasive for two reasons....
...Because section
194.171 did not define "taxpayer," the supreme court looked at the definition of "taxpayer" in section
192.001(13), Florida Statutes (2006).
944 So.2d at 313. Here, unlike in Cason, the ALJ could not use the Nurse Practice Act or rule 64B9-4.010 for guidance when interpreting section
766.314(4)(c) because the Nurse Practice Act and the rule do not define the term "prearranged plan of treatment." See §
464.003; Fla....
...atment." See State v. Mason,
979 So.2d 301, 303 (Fla. 5th DCA 2008) ("A law should be construed together with any other statute relating to the same subject matter or having the same purpose if they are compatible."). The ALJ erroneously interpreted section
766.314(4)(c) as requiring proof of a written document to demonstrate that the doctor supervising Nurse Hilderbrandt "ha[d] a prearranged plan of treatment for specified patient problems." A correct interpretation of that section compels a fi...
0 red0 yellow4 green0 procedural
Cited as authorityPhillips (2011)phrase: "rule_authority"
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...elated neurological injuries, and (2) to have been delivered by a participating physician. §§
766.303,
766.309, Fla. Stat. (1997). The funds for the program are raised by assessments charged to all hospitals and physicians in the state of Florida. §
766.314....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 9699
...erwise been available. The appellants also suggest that regardless of whether there was any willful and wanton disregard in this case, the nurse-midwife should not be able to invoke section
766.303(2) exclusivity if the nurse-midwife did not pay the section
766.314(4)(c), Florida Statutes, assessment for a midwife to be a “participating physician” under the Plan....
0 red0 yellow2 green0 procedural
Cited as authoritySamples (2013)phrase: "rule_authority"
Cited as authoritySamples (2010)phrase: "rule_authority"
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 6620, 2004 WL 1057684
...lated neurological injuries, and (2) to havé been delivered by a participating physician. §§
766.303,
766.309, Fla. Stat. (1997). The funds for the program are raised by assessments charged to all hospitals and physicians in the state of Florida. §
766.314....
0 red0 yellow3 green0 procedural
Cited as authorityBayfront (2005)phrase: "rule_authority"
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...A portion of Chapter 88-1 created the Plan, which provides a no-fault compensation system for certain neurologically injured infants. The Plan's financing scheme, found in Section 73 of Chapter 88-1, as amended by Sections 39 and 41 of Chapter 88-277, Laws of Florida, codified as Section 766.314, Florida Statutes (1989), calls for payments from hospitals, physicians, the Insurance Commissioner's Regulatory Trust Fund, and, in certain circumstances, casualty insurance carriers....
...nstitutional requirements. We also find the appellants' remaining arguments to be without merit. Consequently, the trial court's final judgment upholding Section 73 of Chapter 88-1, as amended by Sections 39 and 41 of Chapter 88-277, and codified as Section 766.314, Florida Statutes (1989), against the various constitutional challenges raised by appellants is affirmed....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 WL 2048919
...erwise been available. The appellants also suggest that regardless of whether there was any willful and wanton disregard in this case, the nurse-midwife should not be able to invoke section
766.303(2) exclusivity if the nurse-midwife did not pay the section
766.314(4)(c), Florida Statutes, assessment for a midwife to be a "participating physician" under the Plan....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 4525, 1990 WL 85455
...A portion of Chapter 88-1 created the Plan, which provides a no-fault compensation system for certain neurologically injured infants. The Plan’s financing scheme, found in Section 73 of Chapter 88-1, as amended by Sections 39 and 41 of Chapter 88-277, Laws of Florida, codified as Section 766.314, Florida Statutes (1989), calls for payments from hospitals, physicians, the Insurance Commissioner’s Regulatory Trust Fund, and, in certain circumstances, casualty insurance carriers....
...tutional requirements. We also find the appellants’ remaining arguments to be without merit. Consequently, the trial court’s final judgment upholding Section 73 of Chapter 88-1, as amended by Sections 39 and 41 of Chapter 88-277, and codified as Section 766.314, Florida Statutes (1989), against the various constitutional challenges raised by appellants is affirmed....
0 red0 yellow1 green0 procedural
Cited as authorityCoy (1992)phrase: "rule_authority"
CopyPublished | Florida 1st District Court of Appeal
...ena relating to insurance examiner's investigation authority) (v) Section
631.021 (Delinquency proceedings against a domestic, foreign, or alien insurer) (w) Section
631.371 (Alternative seizure order provision involving Department of Insurance) (x) Section
766.314(6) (Actions to compel collection of assessments pursuant to Florida Birth Related Neurological Injury Compensation Plan) (y) Section
944.095(12) (Decisions of Governor and Cabinet relating to siting of correctional facilities of the Department of Corrections) 3....
CopyPublished | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 9878, 2010 WL 2671801
...a.1992), and Agency for Health Care Administration v. Hameroff,
816 So.2d 1145 (Fla. 1st DCA 2002), both of which were found to be constitutional under the rational basis test. In Coy , the supreme court approved this Court's opinion declaring valid section
766.314, Florida Statutes, which imposed on all licensed physicians, not only obstetricians, a mandatory annual assessment of $250 to fund the Florida Birth-Related Neurological Injury Compensation Plan ("NICA")....
CopyPublished | District Court of Appeal of Florida
...of resident physicians and an attending board-certified obstetrician/gynecologist, all employed by the Board. Each attending physician was a NICA participating physician. Each resident physician was deemed an NICA participating physician pursuant to section 766.314(4)(c), Florida Statutes (1989)....
...required to comply with the following notice requirement: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 1081, 2011 WL 335401
...birth-related neurological injuries. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't. of Admin. Hearings,
29 So.3d 992, 995 (Fla. 2010). Financing for the fund was provided through assessments made against hospitals and physicians ( see section
766.314) and limitations were placed on amounts recoverable by claimants ( see section
766.31)....
...Braniff,
696 So.2d 308, 309-10 (Fla.1997). With limited exceptions not applicable to the instant case, physicians providing obstetric services are required to pay an annual assessment of $5,000 to be considered a "participating physician." See §§
766.302(7) and
766.314(4)(c)....
CopyPublished | Florida 1st District Court of Appeal
...,
766.303(4),
766.315(1)(a), Fla.
Stat.
The Plan essentially is a risk-management or insurance trust
fund. The Legislature funds the Plan through budgetary
appropriations plus assessments (read: taxes) on licensed
hospitals and physicians. See §
766.314(1), (4), (5)(b), (c), (7), Fla.
Stat.; see also Coy v....
...Birth-Related Neurological Injury Comp.
Plan,
595 So. 2d 943, 944 (Fla. 1992). NICA adopts an operational
plan, subject to approval by the Department of Financial Services,
that provides for “assessments on an actuarially sound basis,”
subject to certain limitations. §
766.314(1), Fla. Stat. The funds are
to be used exclusively for the payment of “awards” made from the
Plan and for expenses incurred to administer it. §
766.314(2)(a),
(3), Fla....
CopyPublished | Florida 1st District Court of Appeal
taxes) on licensed hospitals and physicians. See §
766.314(1), (4), (5)(b), (c), (7), Fla. Stat.; see also
CopyPublished | Florida 1st District Court of Appeal
...03(4),
766.315(1)(a), Fla.
Stat. (2021).
The Plan essentially is a risk-management or insurance trust
fund. The Legislature funds the Plan through budgetary
appropriations plus assessments (read: taxes) on licensed
hospitals and physicians. See §
766.314(1), (4), (5)(b), (c), (7), Fla.
Stat.; see also Coy v....
...Birth-Related Neurological Injury Comp.
Plan,
595 So. 2d 943, 944 (Fla. 1992). NICA adopts an operational
plan, subject to approval by the Department of Financial Services,
that provides for “assessments on an actuarially sound basis,”
subject to certain limitations. §
766.314(2)(a)4., Fla....
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 10837, 2001 WL 864282
...what was paid to settle the claim, attorney’s fees and costs. NICA argues that it is not authorized by statute to pay compensation to anyone other than children who are neuro-logieally injured during birth and their parents. Dr. Feld responds that section 766.314(3) states that “funds collected by the association and any income therefrom should be disbursed only for the payment of awards under ss....
