KATHLEEN BEHAN, MARY LOU BEHAN AND GERALD BEHAN, APPELLANTS,
v.
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, APPELLEE
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The court reversed a hearing officer's decision denying compensation under Florida's Birth-Related Neurological Injury Compensation Act (NICA), holding that the failure to provide statutorily required pre-delivery notice of a provider's NICA participation deprives the agency of jurisdiction to hear such claims.
The notice requirement of section 766.316 is a condition precedent to the applicability of NICA and the agency's exclusive jurisdiction. Because the obstetrician failed to provide the statutorily required notice, the hearing officer lacked jurisdiction to consider the claim.
[1] Failure to provide statutory notice of participation in the Birth-Related Neurological Injury Compensation Act (NICA) deprives the agency of exclusive jurisdiction.
[2] Notice of participation in the Birth-Related Neurological Injury Compensation Act (NICA) is a condition precedent to the agency's jurisdiction.
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Join FLexlaw to unlock all legal intelligence“the failure to give notice to plaintiffs before the provision of medical services that the doctors had elected participation in the Neurological Injury Compensation Act deprives the agency of its exclusive jurisdiction.”
Establishes the central legal principle that notice is a jurisdictional prerequisite to NICA's application
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Join FLexlaw to unlock all legal intelligenceAppellants filed an administrative claim under NICA but did so under protest, contending they were not given notice as required by statute. The hearin…
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PER CURIAM.
Appellants filed an administrative claim pursuant to Florida’s Birth-Related Neurological Injury Compensation Act (NICA), but did so under protest contending that they were not given notice as required by section 766.316, Florida Statutes (1993), and that NICA was, therefore, inapplicable. The hearing officer refused to expressly rule upon the issue of notice, but proceeded to make the following finding:
Having carefully reviewed the evidentiary record developed in this case, the Hearing Officer agrees with NICA that Kathleen Behan has not suffered a “birth-related neurological injury,” within the meaning of Section 766.302(2), Florida Statutes, and that therefore the Behans’ claim is non-compensable under the Plan....
Having considered and decided upon appellant’s claim, the hearing officer assumed jurisdiction and implicitly concluded that notice is not a condition precedent to the exclusive jurisdiction of the agency.
Appellants raise two points in this appeal. First, they contend that the notice requirement of section 766.316 is a condition precedent to the applicability of NICA. They also contend that the hearing officer erred in failing to strictly adhere to the provisions relating to the medical advisory panel report. We need not address appellants’ second point on appeal, since this court concluded in Mills v. North Broward Hospital, 664 So. 2d 66 (Fla. 4th DCA 1995), that:
the failure to give notice to plaintiffs before the provision of medical services that the doctors had elected participation in the Neurological Injury Compensation Act deprives the agency of its exclusive jurisdiction. ...
In the instant case, appellants’ obstetrician failed to provide the statutorily required notice. The hearing officer consequently 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 THAT HEALTH CARE PROVIDERS GIVE PRE-DELIVERY NOTICE TO THEIR OBSTETRICAL PATIENTS OF THEIR PARTICIPATION IN THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS INVOKING NICA AS THE PATIENTS’ EXCLUSIVE REMEDY? REVERSED.
GLICKSTEIN, DELL and FARMER, JJ., concur.
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Galen OF Fla., Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997)…gical Injury Compensation Ass’n, 667 So. 2d 971 (Fla. 4th DCA 1996); Bradford v. Florida Birth-Related Neurological Injury Compensation 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 obst…
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Fla. Birth-Related Neurological Injury Comp. Ass'n v. Florida Division OF Administrative Hearings, 948 So. 2d 705 (Fla. 2007)…766.316, Florida Statutes (1997 & Supp.1998) (NICA). See Univ. of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Gugelmin v. Div. of Admin. Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002); Behan v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 664 So. 2d 1173 (Fla. 4th DCA 1995); O’Leary v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 757 So. 2d 624 (Fla. 5th DCA 2000).1 We frame the question in conflict as follows: Does an administrative law judge (ALJ), when considering a NICA claim, have juri…1 / 2
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ALL Child's. Hosp., Inc. v. Dep't OF Admin. Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004)…ed to follow the ball wherever the legislature chooses to send it. For the same reasons that we disagree with O’Leary, we also differ with the decision of the Fourth District in Behan v. Florida Birth-Related Neurological Injury Compensation Ass’n, 664 So. 2d 1173 (Fla. 4th DCA 1995), and the decision of the Third District in University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001). Behan holds that the adequacy of a provider’s notice under NICA must be determined by the ALJ before he can assume jurisdi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Turner v. Hubrich, 656 So. 2d 970 (Fla. 5th DCA 1995)
- Weinstock v. City OF Plantation, 664 So. 2d 66 (Fla. 4th DCA 1995)