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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.