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Posts filed under 'NICA'

NICA Notice Case Remanded For Further Proceedings

The 2nd District Court of Appeals recently addressed the adequacy of medical provider notice regarding the Neurological Injury Compensation Plan, where some, but not all, medical providers have complied with statutory notice requirements.

The Glenn family filed suit seeking damages for severe injuries suffered by their newborn daughter. They sued and settled with the obstetrician and Bayfront Hospital, the hospital in which the child was born. The lawsuit proceeded against the remaining defendant, All Children’s Hospital, the employer of the neonatal nurses who attended the infant after her birth.

All Children’s Hospital claimed that it was immune from tort liability under the Florida Birth-Related Neurological Injury Compensation Act (“NICA”), and that the plaintiffs’ only remedy was to pursue a claim against the Florida Birth-Related Neurological Injury Compensation Plan. The plaintiffs countered that they had not been provided with sufficient notice, such that NICA immunity was not appropriate.

An administrative law judge held that NICA requirements provide that all medical providers involved in an event must comply with the statutory notice requirements, or else none of them enjoy immunity from tort liability. The 2nd DCA took the opposite position and held that notice by a single provider was sufficient to immunize all from tort liability.

The Florida Supreme Court quashed that 2nd DCA opinion and held that a provider who has given the required notice is shielded from tort liability, while those that have not are not. The Court held that if one of several providers has failed to give required notice, the plaintiff may choose to 1) accept NICA remedies and forgo any tort action against any provider involved in the delivery, or 2) pursue a tort action only against the provider who failed to give the notice and forgo any NICA remedies altogether.

Based upon this ruling, the lower court determined that the Glenn’s could not sue All Children’s Hospital in tort for a NICA-compensable injury, because that hospital did not fail to give required notice.

The Supreme Court subsequently remanded for further consideration two issues raised by the plaintiffs: Whether Bayfront Hospital’s failure to provide notice could be imputed to All Children’s Hospital because it is an agent of Bayfront; and whether All Children’s Hospital should be liable in tort because the injuries to the infant did not occur during labor, delivery, or immediate post-resuscitative efforts.

The 2nd DCA ruled that the agency theory had not been raised in the proceedings below, and therefore was not appropriately raised on appeal. The Court nevertheless reversed and remanded to allow for examination as to whether the injuries were compensable under NICA.  All Children’s Hospital v. Glenn, 2011 Fla. App. LEXIS 1987 (Fla. 2nd DCA February 18, 2011).

Add comment February 23rd, 2011

Administrative Law Judge can Determine NICA Notice

In NICA v. DOA, 32 Fla. L. Weekly (Fla. Sct January 11, 2007), the Supreme Court addressed the issue of whether an Administrative Law Judge (ALJ) has jurisdiction to decide whether proper NICA notice was given.  The case stems from situations where defendants in medical malpractice cases raised NICA as an affirmative defense.  The Plaintiffs had to file for NICA, and claimed they did not receive proper notice under NICA.  The defendant health care providers intervened.  After administrative hearings the ALJ found that notice was not provided, and the health care providers appealed.  The Second DCA ruled that the ALJ does not have jurisdiction to make findings regarding notice.  On appeal the Florida Supreme Court quashed the Second DCA opinion and found that the ALJ has jurisdiction to make notice determinations.

It was previously settled that the ALJ could decide 3 issues:  1.  Whether the injury claimed is a birth-related neurological injury; 2.  Whether obstetrical services were delivered by a NICA participating physician; and 3.  How much compensation should be awarded.

It should be noted that, as Justice Pariente points out in her dissent, this decision effects a very narrow number of cases because it addresses the 1998 version of the statute.  The statute was amended in 2003, and now the ALJ explicitly has the jurisdiction to decide notice.

Add comment February 16th, 2007