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[W] Florida Health Sciences Center12/17/2003
This action arose due to the neurological injuries suffered by the child of Sandra and Frank Britt and implicated the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). The Plan is a statutorily created procedure that limits the liability of health care providers when certain requirements are met.
The administrative law judge (ALJ) here found that the statutorily required notice given by the University of South Florida (USF) faculty physician who assisted in the delivery of the Britts' son, David, was insufficient. The ALJ concluded that because the notice was insufficient, neither the physician nor the hospital where the child was born could claim immunity from civil liability under the Plan. The hospital, Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital (TGH); Florida Birth-Related Neurological Injury Compensation Association (NICA); and the physician's employer, The Florida Board of Regents (FBOR) (collectively "Appellants"), now challenge that order.
The Plan is a legislatively created program that provides compensation , irrespective of fault, to parents of children found (1) to have suffered certain birth-related neurological injuries, and (2) to have been delivered by a participating physician. § 766.303, .309, Fla. Stat. (1997). The funds for the program are raised by assessments charged to all hospitals and to those physicians who choose to participate. § 766.314. Compensation awarded under the Plan is an exclusive remedy and a defense to any malpractice action the parents might file against any health care provider related to the delivery of the child. § 766.303. However, "before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre delivery notice of the health care provider's participation in the plan." Galen of Fla., Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997); see also § 766.316 ("Each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries.").
Pursuant to section 766.304, the ALJ "shall hear and determine all [NICA] claims." Section 766.309 more specifically provides:
(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 post-delivery 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 post-delivery period in a hospital.
(c) How much compensation , if any, is awardable pursuant to s. 766.31.
§ 766.309(1)(a)-(c).
In the instant case, because David Britt suffered serious neurological difficulties at birth, his parents filed a civil action against FBOR and TGH. The trial court then abated the action to allow the ALJ to determine the "applicability and . . . compensability" of the Britts' claims.
Following a hear
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