DR. A. FRED TURNER, ET AL., PETITIONERS,
v.
RHONDA HUBRICH AND TIMOTHY WEIDNER, ETC., ET AL., RESPONDENTS
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Dr. Turner and other NICA participants sought certiorari review of an order allowing respondents to amend their complaint to allege failure to provide statutory notice of participation in Florida's Birth-Related Neurological Injury Compensation Act. The court denied the petition, holding that NICA participants must provide clear notice to patients before services are rendered, and that failure to provide such notice may deprive patients of their right to choose non-NICA providers.
The court held that NICA participants must provide notice to obstetrical patients on forms furnished by the association, including a clear and concise explanation of patient rights and limitations under the plan. The notice must be given in advance of services, as it would be illogical to inform patients of their limited rights after services have been rendered. Failure to provide such notice may deprive patients of the opportunity to seek non-NICA providers and thus affect the exclusivity of the administrative remedy.
[1] Certiorari review is appropriate for orders concerning immunity from civil liability or the appropriate forum for litigation.
[2] Florida's Birth-Related Neurological Injury Compensation Act (NICA) provides an exclusive administrative remedy for birth-related neurological injuries.
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Join FLexlaw to unlock all legal intelligence“Each hospital with a participating physician on its staff and each participating physician ... 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.”
Establishes the statutory requirement that NICA participants must provide notice to patients about the limited no-fault alternative available under the program.
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Join FLexlaw to unlock all legal intelligencePetitioners were participants in Florida's Birth-Related Neurological Injury Compensation Act (NICA). Respondents filed a complaint seeking damages fo…
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PER CURIAM.
We grant petitioners’ motion for rehearing and substitute the following for our previous opinions.
Petitioners request certiorari review of an order allowing respondents to amend their complaint to allege petitioners’ failure to comply with the statutory notice provision of Florida’s Birth-Related Neurological Injury Compensation Act (NICA), sections 766.301-766.316, Florida Statutes (1993). Petitioners, who were participants in NICA, successfully obtained dismissal of respondents’ original complaint because NICA provides an exclusive administrative remedy for birth-related neurological injuries, thereby precluding an action in the circuit court. Although the trial court dismissed the original complaint, it agreed with respondents that NICA requires that a participant give notice of its participation in the compensation act. The court further held that furnishing the notice is a condition precedent to the exclusiveness of the administrative remedy provided by the act. We deny the petition.
Ordinarily orders granting motions to dismiss with leave to amend are not reviewable by certiorari because an adequate remedy exists by plenary appeal. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987). However, in cases where a party is claiming immunity from civil liability or there is a question as to which forum is appropriate, as in this case, courts are more willing to exercise their discretionary certiorari jurisdiction. See City of Hialeah v. Fernandez, 18 Fla.L.Weekly D1222-So. 2d-[1993 WL 152187] (Fla. 3d DCA May 11, 1993); Tucker v. Resha, 610 So. 2d 460 (Fla. 1st DCA 1992), quashed on other grounds, 648 So. 2d 1187 (Fla.1994); Seminole Tribe of Florida v. Houghtaling, 589 So. 2d 1030 (Fla. 2d DCA 1991), approved, 611 So. 2d 1235 (Fla.1993).
Section 766.316, Florida Statutes (1993) provides:
Each hospital with a participating physician on its staff and each participating physician ... 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. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient’s rights and limitations under the plan.
Here, the plaintiffs/respondents wish to allege in an amended complaint that the defendants/petitioners did not give the notice. If that notice was not given, the plaintiffs/respondents were deprived of an opportunity to seek the services of a health care provider who did not participate in the NICA program and who was free of the administrative remedies and limitations of NICA. The notice should give the plaintiffs a “clear and concise explanation of a patient’s rights and limitations under the plan.” The statute 'is quite clear that the burden is on the NICA participants to give the enlightening notice to their patients. The statute is silent as to when the notice is to be given, but it would make little sense to construe the statute to allow the patients to be apprised of rights and limitations after the services leading to the alleged injuries have been performed. Petitioners argue that in an emergency situation it would be difficult to give the required advance notice but it does not appear that an emergency existed in the instant case, as respondents allege that 16 visits to the physicians preceded the admission to the hospital. Because the instant case does not involve an emergency it is not necessary to rule on the requirements of the statute with regard to such an eventuality.
PETITION DENIED.
DAUKSCH, W. SHARP, and PETERSON, JJ., concur.
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Galen OF Fla., Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997)…ensation Ass’n, 667 So. 2d 401 (Fla. 4th DCA 1995); Behan v. Florida Birth-Related Neurological Injury Compensation Ass’n, 664 So. 2d 1173 (Fla. 4th DCA 1995); Mills v. North Broward Hosp. Dist., 664 So. 2d 65 (Fla. 4th DCA 1995); Turner v. Hubrich, 656 So. 2d 970 (Fla. 5th DCA 1995). We agree with the district courts that the only logical reading of the statute is that before an obstetrical patient’s remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provide…1 / 2
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Sierra v. Pub. Health Tr. OF Dade Cnty., 661 So. 2d 1296 (Fla. 3d DCA 1995)…s not comport with the intent of the statute — which was to allow patients to be apprised of their rights and limitations under the statute. Braniff v. Galen of Florida, Inc., 20 Fla. L. Weekly D2140 (Fla. 1st DCA Sept. 11, 1995); Turner v. Hubrich, 656 So. 2d 970 (Fla. 5th DCA 1995) (the opinion on rehearing withdrew the original panel opinion and substituted a new opinion requiring pre-deliveiy notice).…
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Behan v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 664 So. 2d 1173 (Fla. 4th DCA 1995)…quently lacked jurisdiction to consider whether the child had incurred a birth-related injury as contemplated by the plan. See also Branijf v. Galen of Florida Inc., 20 Fla.L.Weekly D2140, — So. 2d — (Fla. 1st DCA Sept. 11, 1995); Turner v. Hubrich, 656 So. 2d 970 (Fla. 5th DCA 1995). Accordingly, we reverse the hearing officer’s order for lack of jurisdiction. We certify the same question as that certified in Mills as being of great public importance: DOES SECTION 766.316, FLORIDA STATUTES (1993), REQUIRE T…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994)
- Houghtaling v. Seminole Tribe OF Florida, 611 So. 2d 1235 (Fla. 1993)
- Tucker v. Resha, 610 So. 2d 460 (Fla. 1st DCA 1992)
- Lebert Batten v. State, 589 So. 2d 1030 (Fla. 2d DCA 1991)
- Seminole Tribe OF Florida v. Houghtaling, 589 So. 2d 1030 (Fla. 2d DCA 1991)