Florida Birth-Related Neurological Injury Compensation Association, et al., Appellants,
Luis Arturo Jimenez, et al., Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the State of Florida Division of Administrative
Hearings Lower Tribunal No. 16-3531N.
Weinberg & Black, P.L., and David W. Black (Plantation);
Brewton Plante, P.A., Wilbur E. Brewton and Kelly B. Plante
(Tallahassee); Falk, Waas, Hernandez & Solomon, P.A.,
Scott E. Solomon and Paige I. Saperstein, for appellants.
Diez-Arguelles & Tejedor, P.A., and Maria D. Tejedor
(Orlando); Fox & Loquasto, LLC, Wendy S. Loquasto and
Susan W. Fox (Tallahassee), for appellees.
SALTER, FERNANDEZ and LINDSEY, JJ.
Birth-Related Neurological Injury Compensation Association
("NICA") appeals an Administrative Law Judge's
("ALJ's") final order granting the
appellees' motion for voluntary dismissal of their
statutory claim with prejudice. Finding no departure from the
terms of the Florida Birth-Related Neurological Injury
Compensation Plan, sections 766.301-.316, Florida Statutes
(2018) (the "Plan"),  we affirm the final order.
and Proceedings Below
appellees ("Parents") are the parents of a minor
child (the "Child") who sustained a birth-related
neurological injury. NICA is the statutory entity created by
the Plan to (a) collect assessments from the licensed
physicians and hospitals practicing obstetrics or delivering
obstetrical services, and (b) pay administratively-allowed
claims, all as described in the Plan.
Child was born on April 8, 2014, prematurely, and thereafter
was diagnosed with cerebral palsy. In 2016, the Parents filed
a "Petition Under Protest" pursuant to the Plan,
expressly disclosing their contentions that the Plan is
unconstitutional and that they claim a right to file a
lawsuit in court without pursuing the statutory, exclusive
administrative route established by the Legislature.
later, the ALJ issued a partial summary final order
determining that the Child had sustained a qualifying
birth-related neurological injury under the Plan, and that
the Parents' claim was thus compensable by NICA. That
order retained jurisdiction for further determinations
regarding (a) the Hospital's and physician's
compliance with the Plan's notice requirement in 766.316,
and (b) the amounts and terms of an award under 766.31.
2018, the ALJ issued a summary final order determining that
the statutory notice requirements were excused under 766.316
due to the Child's emergency medical condition at the
time of treatment. That order gave the parties 30 days to
agree, subject to approval by the ALJ, on the amount and
payment of an administrative award, including the
Parents' reasonable expenses and statutory attorney's
fees incurred and owing.
absence of such an agreement, the ALJ indicated that a
hearing would be scheduled and "an award made consistent
with section 766.31." In response, the Parents advised
NICA and the ALJ that they "have affirmatively elected
to not accept any compensation or award from the [Plan] and
instead elected to pursue a civil action pursuant to section
766.303." That statute includes an exception to the
otherwise-applicable exclusive remedy provided by the Plan:
[A] civil action shall not be foreclosed where there is clear
and convincing evidence of bad faith or malicious purpose or
willful and wanton disregard of human rights, safety, or
property, provided that such suit is filed prior to and in
lieu of payment of an award under ss. 766.301 - 766.316. Such
suit shall be filed before the award of the [Division of
Administrative Hearings of the Department of Management
Services] becomes conclusive and binding as provided for in
§ 766.303(2), Fla. Stat.
Parents' response further stated that they "have
unequivocally expressed their intent to not accept any future
award under the Plan." After filing that response, the
Parents filed a notice of voluntary dismissal of the petition
with prejudice, confirming again that they were not accepting
any compensation or award from the Plan.
and the Hospital moved to strike the Parents' notice of
voluntary dismissal with prejudice, contending that any
election of remedies must be made in circuit court, and that
766.31(1) obligates the ALJ to ...