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This is the 2011 version of the statute, and it
is offered for
general information purposes.
This statute should not be relied on without reviewing your legal
situation with an experienced medical malpractice lawyer, and making sure
you are using the appropriate version of the relevant statute for your
case. The provisions applicable to your potential claim may or may not
be the version that was in effect at the time
of the child's birth, because some changes to the statute have been made
retroactive, and other changes have not. Other statutes and other case law
interpreting or applying these statutes may also apply to your case.
Applies To Florida Only
766.302 Definitions; ss.
766.301-766.316.--As used in ss. 766.301-766.316,
(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.
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.
(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.
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
(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
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