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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
766.31 Administrative
law judge awards for birth-related neurological
injuries; notice of award.--
(1) Upon determining that an infant
has sustained a birth-related neurological injury and
that obstetrical services were delivered by a
participating physician at the birth, the administrative
law judge shall make an award providing compensation for
the following items relative to such injury:
(a) Actual expenses for medically necessary and
reasonable medical and hospital, habilitative and
training, family residential or custodial care,
professional residential, and custodial care and
service, for medically necessary drugs, special
equipment, and facilities, and for related travel.
However, such expenses shall not include:
1. Expenses for items or services that the infant has
received, or is entitled to receive, under the laws of
any state or the Federal Government, except to the
extent such exclusion may be prohibited by federal law.
2. Expenses for items or services that the infant has
received, or is contractually entitled to receive, from
any prepaid health plan, health maintenance
organization, or other private insuring entity.
3. Expenses for which the infant has received
reimbursement, or for which the infant is entitled to
receive reimbursement, under the laws of any state or
the Federal Government, except to the extent such
exclusion may be prohibited by federal law.
4. Expenses for which the infant has received
reimbursement, or for which the infant is contractually
entitled to receive reimbursement, pursuant to the
provisions of any health or sickness insurance policy or
other private insurance program.
Expenses included under this paragraph shall be limited
to reasonable charges prevailing in the same community
for similar treatment of injured persons when such
treatment is paid for by the injured person.
(b)1. Periodic payments of an award to the parents or
legal guardians of the infant found to have sustained a
birth-related neurological injury, which award shall not
exceed $100,000. However, at the discretion of the
administrative law judge, such award may be made in a
lump sum.
2. Death benefit for the infant in an amount of $10,000.
(c) Reasonable expenses incurred in connection with the
filing of a claim under ss. 766.301-766.316, including
reasonable attorney's fees, which shall be subject to
the approval and award of the administrative law judge.
In determining an award for attorney's fees, the
administrative law judge shall consider the following
factors:
1. The time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal services properly.
2. The fee customarily charged in the locality for
similar legal services.
3. The time limitations imposed by the claimant or the
circumstances.
4. The nature and length of the professional
relationship with the claimant.
5. The experience, reputation, and ability of the lawyer
or lawyers performing services.
6. The contingency or certainty of a fee.
Should there be a final determination of compensability,
and the claimants accept an award under this section,
the claimants shall not be liable for any expenses,
including attorney's fees, incurred in connection with
the filing of a claim under ss. 766.301-766.316 other
than those expenses awarded under this section.
(2) The award shall require the immediate payment of
expenses previously incurred and shall require that
future expenses be paid as incurred.
(3) A copy of the award shall be sent immediately by
registered or certified mail to each person served with
a copy of the petition under s.
766.305(2).
History.--s. 69, ch. 88-1;
s. 5, ch. 89-186; s. 22, ch. 91-46; s. 4, ch. 94-106; s.
313, ch. 96-410; s. 150, ch. 2001-277; s. 6, ch.
2002-401; s. 78, ch. 2003-416.
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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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