The 2023 Florida Statutes (including Special Session C)

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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F.S. 766.302

766.302 Definitions; ss. 766.301-766.316.—As used in ss. 766.301-766.316, the term:

(1) “Association” means the Florida Birth-Related Neurological Injury Compensation Association established in s. 766.315 to administer the Florida Birth-Related Neurological Injury Compensation Plan and the plan of operation established in s. 766.314.

(2) “Birth-related neurological injury” means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

(3) “Claimant” means any person who files a claim pursuant to s. 766.305 for compensation for a birth-related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof.

(4) “Administrative law judge” means an administrative law judge appointed by the division.

(5) “Division” means the Division of Administrative Hearings of the Department of Management Services.

(6) “Hospital” means any hospital licensed in Florida.

(7) “Participating physician” means a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred. Such term shall not apply to any physician who practices medicine as an officer, employee, or agent of the Federal Government.

(8) “Plan” means the Florida Birth-Related Neurological Injury Compensation Plan established under s. 766.303.

(9) “Family member” means a father, mother, or legal guardian.

(10) “Family residential or custodial care” means care normally rendered by trained professional attendants which is beyond the scope of child care duties, but which is provided by family members. Family members who provide nonprofessional residential or custodial care may not be compensated under this act for care that falls within the scope of child care duties and other services normally and gratuitously provided by family members. Family residential or custodial care shall be performed only at the direction and control of a physician when such care is medically necessary. Reasonable charges for expenses for family residential or custodial care provided by a family member shall be determined as follows:

(a) If the family member is not employed, the per-hour value equals the federal minimum hourly wage.

(b) If the family member is employed and elects to leave that employment to provide such care, the per-hour value of that care shall equal the rates established by Medicaid for private duty services provided by a home health aide. A family member or a combination of family members providing care in accordance with this definition may not be compensated for more than a total of 10 hours per day. Family care is in lieu of professional residential or custodial care, and no professional residential or custodial care may be awarded for the period of time during the day that family care is being provided.

(c) The award of family residential or custodial care as defined in this section shall not be included in the current estimates for purposes of s. 766.314(9)(c).

History.—s. 61, ch. 88-1; s. 36, ch. 88-277; s. 16, ch. 91-46; s. 2, ch. 93-251; s. 307, ch. 96-410; s. 149, ch. 2001-277; s. 5, ch. 2002-401.

F.S. 766.302 on Google Scholar

F.S. 766.302 on Casetext

Amendments to 766.302

Arrestable Offenses / Crimes under Fla. Stat. 766.302

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 766.302.

Annotations, Discussions, Cases:

Cases from cite.case.law:

LAMPERT T. L. v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,, 206 So.3d 845 (Fla. Dist. Ct. App. 2016)

. . . Appellants are the parents of a son born with a- birth-related neurological injury as defined by § 766.302 . . .

PUTNAM COMMUNITY MEDICAL CENTER, v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, a k a a, 204 So.3d 598 (Fla. Dist. Ct. App. 2016)

. . . Putnam Community Medical Center (“the hospital”) challenges section 766.302(2) of NICA on state and federal . . . births only and shall not include disability or death caused by genetic or congenital abnormality. § 766.302 . . . recent increases in such premiums have been greater for such physicians than other physicians”); § 766.302 . . . Second, even assuming equal protection analysis applies, section 766.302(2) withstands constitutional . . . See, e.g., § 766.302(2), Fla. . . .

CHILDREN S MEDICAL CENTER, P. A. M. D. M. D. M. D. M. D. v. KIM a, 190 So. 3d 114 (Fla. Dist. Ct. App. 2015)

. . . .” § 766.302(2), Fla.' Stat. - (2007). . . . See §§ 766.301, 766.302(7), Fla. Stat. (2007). . . .

SAMPLES, v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,, 114 So. 3d 912 (Fla. 2013)

. . . August 2007, MacKenzie Samples was born with birth-related neurological injuries, as defined in section 766.302 . . .

MARADIAGA, J. C. S. M. a G. J. C. S. M. a v. UNITED STATES, 679 F.3d 1286 (11th Cir. 2012)

. . . . § 766.302(2). . . . Id. § 766.302(7). . . . Stat. § 766.302(7). . . . Federal Government” from the definition of “participating physician” in the Compensation Act, see id. § 766.302 . . .

UNIVERSITY OF MIAMI d b a M. D. M. D. M. D. M. M. D. d b a M. D. v. EXPOSITO, GONZALEZ, a, 87 So. 3d 803 (Fla. Dist. Ct. App. 2012)

. . . . § 766.302(2), Fla. Stat. (2010) (emphasis added). . . . may be filed by an administrator, personal representative, or other legal representative thereof. § 766.302 . . . Compensation Association was created by the NICA statute and serves as the administrator of the NICA Plan. §§ 766.302 . . . claim pursuant to s. 766.305 for compensation for a birth-related neurological injury to an infant." § 766.302 . . .

BENNETT, v. ST. VINCENT S MEDICAL CENTER, INC. v. St. s, 71 So. 3d 828 (Fla. 2011)

. . . .” § 766.302(2), Fla. St it. (2001). . . . In turning to the statutory language, section 766.302(2) defines “[b]irth-related neurological injury . . . In reviewing the definition provided by section 766.302(2), the phrases “caused by” and “occurring in . . . Under section 766.302, a “claimant” is defined as “any person who files a claim ... for compensation” . . . under the NICA statute for a “birth-related neurological injury.” § 766.302(3), Fla. . . .

ORLANDO REGIONAL HEALTHCARE SYSTEM, INC. v. GWYN, 53 So. 3d 385 (Fla. Dist. Ct. App. 2011)

. . . Specifically, section 766.302(7), Florida Statutes (2010), defines “participating physician” as: A physician . . . See §§ 766.302(7) and 766.314(4)(c). . . .

SAMPLES v. FLORIDA BIRTH- RELATED NEUROLOGICAL,, 40 So. 3d 18 (Fla. Dist. Ct. App. 2010)

. . . August 2007, MacKenzie Samples was born with birth-related neurological injuries, as defined in section 766.302 . . . Every child subject to NICA has two biological parents, a mother and a father. § 766.302(9), Fla. . . .

TARPON SPRINGS HOSPITAL FOUNDATION, INC. d b a A. R. N. P. C. N. M. v. ANDERSON J. a H. M. D. M. D. A. M. D. M. D., 34 So. 3d 742 (Fla. Dist. Ct. App. 2010)

. . . Section 766.302(7) defines the term, “participating physician” as a physician licensed in Florida to . . .

PEDIATRIX MEDICAL GROUP OF FLORIDA, INC. M. D. M. D. M. D. M. D. v. FALCONER, a, 31 So. 3d 310 (Fla. Dist. Ct. App. 2010)

. . . . § 766.302(7) (defining a “participating physician” as one who practices obstetrics or “performs obstetrical . . . physician practicing obstetrics or performing obstetrical services must pay the yearly assessment. § 766.302 . . .

FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, v. MICHAEL II, a, 98 So. 3d 64 (Fla. Dist. Ct. App. 2010)

. . . parents of a boy, born in 1995, who has birth-related neurological injuries within the meaning of section 766.302 . . . See § 766.302(1). . . .

FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, v. DEPARTMENT OF ADMINISTRATIVE HEARINGS, v. v., 29 So. 3d 992 (Fla. 2010)

. . . . § 766.302(7), Fla. . . . .” § 766.302(6), Fla. Stat. (1997). . . . See § 766.302(8), Fla. Stat. (1997). . . . .

ST. VINCENT S MEDICAL CENTER, INC. H. M. D. P. A. v. BENNETT, a, 27 So. 3d 65 (Fla. Dist. Ct. App. 2009)

. . . . § 766.302(2), Fla. Stat. See also Nagy v. . . . ” which renders the infant both “permanently and substantially mentally and physically impaired.” § 766.302 . . . state Tristan did not have permanent and substantial neurological impairment as defined in section 766.302 . . . Of course, section 766.302(2) defines a [b]irth-related neurological injury as an injury to the brain . . . Importantly, neither section 766.302(2) nor section 766.309(l)(a) requires that neurological damage be . . .

ORLANDO REGIONAL HEALTHCARE SYSTEM, INC. v. FLORIDA BIRTH- RELATED NEUROLOGICAL,, 997 So. 2d 426 (Fla. Dist. Ct. App. 2008)

. . . determined that Harper had not suffered a “birth-related neurological injury,” as defined under section 766.302 . . . injury did not meet the definition of a “birth-related neurological injury,” as defined in section 766.302 . . . hospital,” which renders the infant both permanently and substantially mentally and physically impaired. § 766.302 . . . in a hospital” that rendered him permanently and substantially mentally and physically impaired. § 766.302 . . .

BAYFRONT MEDICAL CENTER, INC. v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 982 So. 2d 704 (Fla. Dist. Ct. App. 2008)

. . . the delivery of an infant meet the statutory definition of a “[bjirth-related neurological injury,” § 766.302 . . .

DIANDERAS v. FLORIDA BIRTH RELATED NEUROLOGICAL,, 973 So. 2d 523 (Fla. Dist. Ct. App. 2007)

. . . determined that Isabelle suffered a “birth-related neurological injury” within the meaning of section 766.302 . . . Only injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida . . . 1349 (holding that word “and” in phrase “substantially mentally and physically impaired” under section 766.302 . . .

FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, v. FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS, v., 948 So. 2d 705 (Fla. 2007)

. . . In NICA, the Legislature established the NICA Plan, § 766.302(8), Fla. . . . See § 766.302(6)-(7), Fla. Stat. (1997). . . . See § 766.302(1), Fla. Stat. (1997); §§ 766.305, .308, .315, Fla. Stat. (Supp.1998). . . . See § 766.302(1), Fla. Stat. (1997); see also §§ 766.314-.315, Fla. Stat. . . . . § 766.302(2), Fla. Stat. (1997). . . . .

MATTEINI v. FLORIDA BIRTH- RELATED NEUROLOGICAL,, 946 So. 2d 1092 (Fla. Dist. Ct. App. 2006)

. . . injury [did] not meet the definition of a ‘birth-related neurological injury’ as defined in Section 766.302 . . . , which renders the infant both “permanently and substantially mentally and physically impaired.” § 766.302 . . . to demonstrate that the infant suffers a “birth-related neurological injury,” as defined in section 766.302 . . .

UNIVERSITY OF MIAMI d b a a v. RUIZ A. a, 916 So. 2d 865 (Fla. Dist. Ct. App. 2005)

. . . administrative compensation system for some birth-related neurological injuries pursuant to section 766.302 . . .

ORLANDO REGIONAL HEALTHCARE SYSTEM, INC. v. ALEXANDER,, 909 So. 2d 582 (Fla. Dist. Ct. App. 2005)

. . . The term “birth-related neurological injuries” is defined as follows: 766.302. . . . births only and shall not include disability or death caused by genetic or congenital abnormality. § 766.302 . . . As for her “on its face” challenge, Alexander claims that sections 766.309 and 766.302 of the Florida . . .

DEPART, CNM, v. MACRI O M. D. P. A. d b a s, 902 So. 2d 271 (Fla. Dist. Ct. App. 2005)

. . . wjhether the injury claimed is a birth-related neurological injury,” as that term is defined in section 766.302 . . .

GUGELMIN, a v. FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION N. M. D. N. M. D. P. A. P. A. a d b a, 882 So. 2d 517 (Fla. Dist. Ct. App. 2004)

. . . eventually determined that Giuliano had sustained a birth-relatéd neurological injury, as defined by section 766.302 . . . See §§ 766.302(2), 766.303(2), 766.316, Fla. Stat. (1988); §§ 766.302(2), 766.303(2), 766.316, Fla. . . .

TABB, TABB, a v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION M. D. d b a, 880 So. 2d 1253 (Fla. Dist. Ct. App. 2004)

. . . rebut-table presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302 . . .

FLORIDA HEALTH SCIENCES CENTER, INC. d b a v. DIVISION OF ADMINISTRATIVE HEARINGS v. a, 871 So. 2d 1062 (Fla. Dist. Ct. App. 2004)

. . . rebuttable presumption shall -arise that the injury is a birth-related neurological injury as defined in s. 766.302 . . .

ALL CHILDREN S HOSPITAL, INC. v. DEPARTMENT OF ADMINISTRATIVE HEARINGS, a H. f k a, 863 So. 2d 450 (Fla. Dist. Ct. App. 2004)

. . . A detailed definition of “[bjirth-related neurological injury” is set forth in section 766.302(2); “[ . . . participating physician” is defined in section 766.302(7). . . . rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302 . . .

ADVENTIST HEALTH SYSTEM SUNBELT, INC. v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY, 865 So. 2d 561 (Fla. Dist. Ct. App. 2004)

. . . . § 766.302(2), Fla. Stat. The statute is clearly written in the conjunctive. . . . Legislature or the Supreme Court changes the definition of a “birth-related neurological injury.” § 766.302 . . . In section 766.302(2), the Legislature provides the following definition: “Birth-related neurological . . . that a presumption arises that the injury is a birth-related neurological injury as defined in section 766.302 . . . physically impaired and ... has suffered a ‘birth-related neurological injury’ within the meaning of section 766.302 . . . should the word “and,” as used in the phrase “substantially mentally and physically impaired” in section 766.302 . . . Section 766.302, Florida Statutes, refers to the Plan as established under section 766.303. . . . .” § 766.302(2), Fla. Stat. (1995). (Emphasis added.) . . . compensation under the plan, claiming that he was “mentally impaired” within the meaning of section 766.302 . . . impaired and that Eric has suffered a “birth-related neurological injury,” within the meaning of Section 766.302 . . . Sections 766.302(2), 766.309(2), and 766.31(1), Florida Statutes. . . . PLEUS, J., dissents, with opinion, in which SHARP, W., J., concurs. .Section 766.302(2), Florida Statutes . . .

BAYFRONT MEDICAL CENTER, INC. v. DIVISION OF ADMINISTRATIVE HEARINGS, v., 841 So. 2d 626 (Fla. Dist. Ct. App. 2003)

. . . See § 766.302(2). . . .

ROMINE v. FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,, 842 So. 2d 148 (Fla. Dist. Ct. App. 2003)

. . . See §§ 766.302(3), 766.305(1), & 766.313, Fla. Stat. (1998). . . . See §§ 766.315, 766.302, Fla. Stat. . . . .

NAGY a v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, M. D., 813 So. 2d 155 (Fla. Dist. Ct. App. 2002)

. . . Section 766.302(2), Florida Statutes (1997), provides: “Birth-related neurological injury” means injury . . . This case involves the interpretation and application of section 766.302(2), a part of the Plan, which . . . They dispute the ALJ’s interpretation of when the brain injury must occur according to section 766.302 . . . brain or spinal cord, by definition, it is not a “birth-related neurological injury” within section 766.302 . . .

A. GILBERT, Ad a v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION d b a s, 724 So. 2d 688 (Fla. Dist. Ct. App. 1999)

. . . Whether Michael did in fact suffer a “birth-related neurological injury” as defined in section 766.302 . . .

BARDEN, M. D. M. D. P. A. v. W. HADDOX, a, 695 So. 2d 1271 (Fla. Dist. Ct. App. 1997)

. . . Haddox, a minor, suffered a birth-related neurological injury as defined in section 766.302(2), Florida . . .

GALEN OF FLORIDA, INC. v. BRANIFF, BAZLEY, M. D. v. BRANIFF,, 696 So. 2d 308 (Fla. 1997)

. . . In the definitions portion, section 766.302(7), Florida Statutes (1993) provides: “Participating physician . . .

BOARD OF REGENTS OF STATE OF FLORIDA, M. M. D. K. M. D. a v. ATHEY, a By ATHEY D. a k a, D. A K A D. a, 694 So. 2d 46 (Fla. Dist. Ct. App. 1997)

. . . . § 766.302(7), Fla. Stat. (1989). . . .

FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, v. FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS,, 686 So. 2d 1349 (Fla. 1997)

. . . claim for compensation based on its conclusion that Eric had not suffered an injury covered by section 766.302 . . . which NICA contested based on its conclusion that Eric had not suffered an injury covered by section 766.302 . . . Sections 766.302(2), 766.309(2), and 766.31(1), Florida Statutes. . . . See §§ 766.302(3), 766.303(2), 766.305(1), and 766.313. . . . Section 766.302(2) states: “Birth-related neurological injury” means injury to the brain or spinal cord . . .

FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, v. McKAUGHAN a HUMANA OF FLORIDA, INC. d b a s L. M. D. v. McKAUGHAN a SOLOMON, M. D. v. McKAUGHAN a, 668 So. 2d 974 (Fla. 1996)

. . . in the course of labor, delivery, or resuscitation in the immediate post-delivery period,” see sec. 766.302 . . . petition, alleging that “Michael has suffered a ‘birth-related neurological injury’ as defined in section 766.302 . . . See § 766.302(2). . . . Id. § 766.302(2). . . . CLAIMANTS FOR NICA BENEFITS Section 766.302(3) defines the class of claimants who can seek NICA benefits . . .

BRADFORD, a BRADFORD, v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,, 667 So. 2d 401 (Fla. Dist. Ct. App. 1995)

. . . course of labor, delivery, or resuscitation in the immediate postdelivery,” as required by section 766.302 . . . In the definitions portion, section 766.302(7), Florida Statutes (1993) provides: “Participating physician . . .

BEHAN, v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,, 664 So. 2d 1173 (Fla. Dist. Ct. App. 1995)

. . . Kathleen Behan has not suffered a “birth-related neurological injury,” within the meaning of Section 766.302 . . .

FLORIDA BIRTH RELATED NEUROLOGICAL, v. FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS,, 664 So. 2d 1016 (Fla. Dist. Ct. App. 1995)

. . . construction and application of the definition of a “birth-related neurological injury” as provided in section 766.302 . . . Association (NICA) based on its conclusion that Eric had not suffered an injury covered by section 766.302 . . . issue in this case turns on the definition of “birth-related neurological injury” as defined by section 766.302 . . . The hearing officer rejected NICA’s interpretation of section 766.302(2) as “unduly narrow.” . . . NICA urges that section 766.302(2) is in derogation of the common law and thus must be strictly construed . . .

WHITE, v. FLORIDA BIRTH RELATED NEUROLOGICAL,, 655 So. 2d 1292 (Fla. Dist. Ct. App. 1995)

. . . NICA’s contention that: “... the instant claim ... fails to meet the criteria set forth at Section 766.302 . . . to show cause entered April 20, 1994, each petitioner was advised: “Given the provisions of Section 766.302 . . . A ‘birth-related neurological injury’ is defined by Section 766.302(2), Florida Statutes, to mean: “. . . . See Sections 766.302(3) and 766.305(l)(a), Florida Statutes. “19. . . . Section 766.302, Fla.Stat. (1993), provides that ‘a claim may be filed by any legal representative on . . .

CENTRAL FLORIDA REGIONAL HOSPITAL, INC. v. WAGER, C. MOWERE, v. WAGER,, 656 So. 2d 491 (Fla. Dist. Ct. App. 1995)

. . . forecloses any civil action against a NICA participant when the injury is of the type defined in section 766.302 . . . Claimants are defined by section 766.302(3): (3) “Claimant” means any person who files a claim pursuant . . .

HUMANA OF FLORIDA. INC. d b a s L. M. D. L. M. D. P. A. v. McKAUGHAN McKAUGHAN, a FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, v. McKAUGHAN McKAUGHAN, a SOLOMON, M. D. M. D. P. A. v. McKAUGHAN McKAUGHAN, a, 652 So. 2d 852 (Fla. Dist. Ct. App. 1995)

. . . . § 766.302(2). . . . Section 766.302(3) defines a claimant to mean “any person who files a claim pursuant to s. 766.305 for . . . (codified as amended at §§ 766.302(4), 766.304, Fla. Stat. (1993)). . . . .

FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, v. CARRERAS, a, 633 So. 2d 1103 (Fla. Dist. Ct. App. 1994)

. . . See § 766.302(2), Fla.Stat. (1991). . . . See § 766.302(1), Fla.Stat. (1991). . . . .

UNIVERSITY OF MIAMI, d b a M. D. v. M. KLEIN,, 603 So. 2d 651 (Fla. Dist. Ct. App. 1992)

. . . After defining a “birth-related neurological injury” in section 766.302(2), the subsection continues . . . Further support for the conclusion is to be found in the second sentence of section 766.302(3), which . . .