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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
766.309 Determination
of claims; presumption; findings of administrative law
judge binding on participants.--
(1) The administrative law judge shall make the
following determinations based upon all available
evidence:
(a) Whether the injury claimed is a birth-related
neurological injury. If the claimant has demonstrated,
to the satisfaction of the administrative law judge,
that the infant has sustained a brain or spinal cord
injury caused by oxygen deprivation or mechanical injury
and that the infant was thereby rendered permanently and
substantially mentally and physically impaired, a
rebuttable presumption shall arise that the injury is a
birth-related neurological injury as defined in s.
766.302(2).
(b) Whether obstetrical services were delivered by a
participating physician in the course of labor,
delivery, or resuscitation in the immediate postdelivery
period in a hospital; or by a certified nurse midwife in
a teaching hospital supervised by a participating
physician in the course of labor, delivery, or
resuscitation in the immediate postdelivery period in a
hospital.
(c) How much compensation, if any, is awardable pursuant
to s. 766.31.
1(d) Whether, if raised by the claimant or
other party, the factual determinations regarding the
notice requirements in s. 766.316
are satisfied. The administrative law judge has the
exclusive jurisdiction to make these factual
determinations.
(2) If the administrative law judge determines that the
injury alleged is not a birth-related neurological
injury or that obstetrical services were not delivered
by a participating physician at the birth, she or he
shall enter an order and shall cause a copy of such
order to be sent immediately to the parties by
registered or certified mail.
(3) By becoming a participating physician, a physician
shall be bound for all purposes by the finding of the
administrative law judge or any appeal therefrom with
respect to whether such injury is a birth-related
neurological injury.
(4) If it is in the interest of judicial economy or if
requested to by the claimant, the administrative law
judge may bifurcate the proceeding addressing
compensability and notice pursuant to s.
766.316 first, and addressing
an award pursuant to s. 766.31,
if any, in a separate proceeding. The administrative law
judge may issue a final order on compensability and
notice which is subject to appeal under s.
766.311, prior to issuance of
an award pursuant to s. 766.31.
History.--s. 68, ch. 88-1; s. 4, ch. 89-186; s.
21, ch. 91-46; s. 3, ch. 94-106; s. 312, ch. 96-410; s.
1805, ch. 97-102; s. 77, ch. 2003-416; s. 1, ch. 2006-8.
1Note.--Section 2, ch. 2006-8,
provides that "[i]t is the intent of the Legislature
that the amendment to s. 766.309, Florida Statutes,
contained in this act, clarifies that since July 1,
1998, the administrative law judge has had the exclusive
jurisdiction to make factual determinations as to
whether the notice requirements in s. 766.316, Florida
Statutes, are satisfied."
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This site contains
only general background information and is not intended to
constitute specific legal advice or establish an attorney/client
relationship. Malpractice laws vary from state to state and are
constantly changing. If you think you may have a malpractice case
you should promptly contact a lawyer in your state with experience
in handling malpractice cases.
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