I Legislative findings and 'History.--s. 60, ch. 88-1; s. I, ch. 98- intent

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1 ";'~",; c,..', "'II '. :'.." ~ Florida Birth-Related Neurological Injury Compensation Association Florida Statutes as amended through July 1, I Legislative findings and 'History.--s. 60, ch. 88-1; s. I, ch. 98- intent (1) The Legislature makes the following Definitions; ss findings: As used in ss , the term: (a) Physicians practicing obstetrics are high-risk medical specialists for whom (1)" Association II means the Florida malpractice insurance premiums are very Birth-Related Neurological Injury costly, and recent increases in such Compensation Association established in premiums have been greater for such s to administer the Florida physicians than for other physicians. Birth-Related Neurological Injury Compensation Plan and the plan of (b) Any birth other than a normal birth operation established in s frequently leads to a claim against the attending physician; consequently, such (2) "Birth-related neurological injury" physicians are among the physicians means injury to the brain or spinal cord,most severely affected by current of a live infant weighing at least 2,500 medical malpractice problems. grams for a single gestation or. in the ~' (c) if;!,' Because obstetric services -.are case of a multiple gestation, a live infant weighing at least 2,000 grams at birth.o~.'!: essential, it is incumbent upon the caused by oxygen deprivation or Legislature to provide a plan designed to mechanical injury occurring in the result in the stabilization and reduction course of labor, delivery, or resuscitation of malpractice insurance premiums for in the immediate postdelivery period in a providers of such services in Florida. hospital, which renders the infant permanently and substantially mentally (d) The costs of birth-related and physically impaired. This definition neurological injury claims are shall apply to live births only ~d shall particularly high and warrant the not include disability or death caused by establishment of a limited system of genetic or congenital abnormality. compensation irrespective of fault. The issue of whether such claims are covered (3) "Claimant" means any person who by this act must be determined files a claim pursuant to s for exclusively in an administrative compensation for a birth-related proceeding. neurological injury to an infant. Such a claim may be filed by any legal (2) It is the intent of the Legislature to representative on behalf of an injured provide compensation, on a no-fault infant; and, in the case of a deceased basis, for a limited class of catastrophic infant, the claim may be filed by an injuries that result in unusually high administrator, personal representative, or costs for custodial care and other legal representative thereof. rehabilitation. This plan shall apply only to birth-related neurological injuries. (4) "Administrative law judge" means an administrative law judge appointed by the division.

2 .' ".~ -#.. :'~ ",, (5) "Division" means the Division of (2) The rights and remedies granted by Administrative Hearings of the this plan on account of a birth-related Department of Management Services. neurological injury shall exclude all other rights and remedies of such infant, :,. (6) "Hospital" means any hospital her or his personal representative, licensed in Florida. parents, dependents, and next of kin, at common law or otherwise, against any (7) "Participating physician" means a person or entity directly involved with physician licensed in Florida to practice the labor, delivery, or immediate medicine who practices obstetrics or postdelivery resuscitation during which performs obstetrical services either full such injury occurs, arising out of or time or part time and who had paid or related to a medical malpractice claim was exempted from payment at the time with respect to such injury; except that a.of the injury the assessment required for civil action shall not be foreclosed where participation in the birth-related there is clear and convincing evidence of neurological injury compensation plan bad faith or malicious purpose or willful : :Jfor the year in which the injury occulted. and wanton disregard of human rights,..such term shall not apply to" any safety, or property, provided that such physician who practices medicine as an suit is filed prior to and in lieu of officer, employee, or agent of the payment of an award under ss Federal Government Such suit shall be filed before the award of the division becomes (8) "Plan" means the Florida Birth- conclusive and binding as provided for Related Neurological Injury in s Compensation Plan established under s (3) Sovereign immunity is hereby waived on behalf of the Florida Birth- History.--s. 61, ch. 88-1; s. 36, ch. 88- Related Neurological Injury 277; s. 16, ch ; s. 2, ch ; s. Compensation Association solely to the 307, ch extent necessary to assure payment of compensation as provided in s Florida Birth-Related Neurological Injury Compensation Plan; History.--s. 62, ch. 88-1; s. 37, ch. 88- exclusiveness ofremedy ; s. 1, ch ; s. 1154, ch (1) There is established the Florida Birth-Related Neurological Injury Administrative law judge to Compensation Plan for the purpose of determine claims.-- The administrative providing compensation, irrespective of law judge shall hear and determine all fault, for birth-related neurological claims filed pursuant to ss injury claims. Such plan shall apply to and shall exercise the full power births occurring on or after January 1, and authority granted to her or him in 1989, and shall be administered by the chapter 120, as necessary, to carry out Florida Birth-Related Neurological the purposes of such sections. The Injury Compensation Association. administrative law judge has exclusive

3 :. ~:,,:~' ":".~:.-. jurisdiction to detennine whether a claim petition seeking compensation. Such filed under this act is compensable. No petition shall include the following civil action may be brought until the information: detenninations under s have been made by the administrative law (a) The name and address of the legal judge. If the administrative law judge representative and the basis for her or his determines that the claimant is entitled to representation of the injured infant. compensation from the association, no civil action may be brought or continued (b) The name and address of the injured in violation of the exclusiveness of infant. remedy provisions of s If it is determined that a claim filed under this (c) The name and address of any act is not compensable, neither the physician providing obstetrical services doctrine of collateral estoppel nor res who was present at the birth and the judicata shall prohibit the claimant from name and address of the hospital at pursuing any and all civil remedies which the birth occurred. :, available under common law: and.statutory law. The findings of fact, and conclusions of law of the administrative (d) A description of the disability for which the claim is made. " 'f law judge shall not be admissible in any : subsequent proceeding; however, the (e) The time and place the injury sworn testimony of any person and the occurred. exhibits introduced into evidence in the administrative case are admissible as (t) A brief statement of the facts and impeachment in any subsequent civil circumstances surrounding the injury action only against a party to the and giving rise to the claim. administrative proceeding, subject to the Rules of Evidence. An action may not be (g) All available relevant medical brought under ss if the records relating to the birth-related claimant recovers or final judgment is neurological injury, and an identification entered. The division may adopt rules to of any unavailable records known to the promote the efficient administration of, claimant and the reasons for their and to minimize the cost associated with, unavailability. the prosecution of claims. (h) Appropriate assessments, History.--s. 63, ch. 88-1; s. 17, ch. 91- evaluations, and prognoses, and such 46; s. 3, ch ; s. 308, ch ; other records and documents as are s. 1803, ch ; s. 2, ch ; s. reasonably necessary for the 90, ch determination of the amount of compensation to be paid to, or on behalf Filing of claims and responses; of, the injured infant on account of the medical disciplinary review.-- birth-related neurological injury. (1) All claims filed for compensation (i) Documentation of expenses and under the plan shall commence by the services incurred to date, which indicates claimant filing with the division a

4 ..I. t.1....c...,'-' any payment made for such expenses and services, and by whom. disciplinary action, in which case the provisions of s shall apply. (j) Documentation of any applicable (5) Upon receipt of such petition, the private or governmental source of Agency for Health Care Administration services or reimbursement relative to the shall investigate the claim, and if it impairments. determines that the injury resulted from, or was aggravated by, a breach of duty (2) The claimant shall furnish the on the part of a hospital in violation of division with as many copies of the chapter 395, it shall take any such action petition as required for service upon the consistent with its disciplinary authority association, any physician and hospital as may be appropriate. named in the petition, and the Division of Medical Quality Assurance, along (6) Any claim which the association ~ with a $15 filing fee payable to the determines to be compensable may be Division of Administrative Hearings. accepted for compensation, provided,: Upon receipt of the petition, the division that the acceptance is approved by the,,;:,.,;:: ~hall immediately serve the association, administrative law judge to whom the :- '.!by service upon the agent designated to claim for compensation is assigned..',." accept service on behalf of the! association, by registered or certified History.--s. 64, ch. 88-1; s. 2, ch. 89- mail, and shall mail copies of the 186; s. 18, ch ; s. 4, ch ; s. petition to any physician and hospital 1, ch ; s. 309, ch ; s. named in the petition, the Division of 1804, ch ; s. 165, ch ; s. Medical Quality Assurance, the Agency 287, ch. 99-8; s. 226, ch for Health Care Administration, and the medical advisory review panel provided Tolling of statute of for in s limitations.-- The statute of limitations with respect to any civil action that may (3) The association shall have 45 days be brought by, or on behalf of, an injured from the date of service of a complete infant allegedly arising out of, or related claim, filed pursuant to subsections (1) to, a birth-related neurological injury and (2), in which to file a response to the shall be tolled by the filing of a claim in petition and to submit relevant written accordance with ss , information relating to the issue of and the time such claim is pending or is whether the injury alleged is a birthrelated neurological injury. on appeal shall not be computed as part of the period within which such civil action may be brought. (4) Upon receipt of such petition, the Division of Medical Quality Assurance History.--s. 65, ch shall review the information therein and determine whether it involved conduct Hearing; parties; discovery.-- by a physician licensed under chapter 458 or an osteopathic physician licensed (1) The administrative law judge shall under chapter 459 that is subject to set the date for a hearing no sooner than 60 days and no later than 120 days after

5 .\ i ;'-C~',,..,','!jO,,.',..", ""1,lib the filing by a claimant of a petition in brain or spinal cord injury caused by compliance with s The oxygen deprivation or mechanical injury administrative law judge shall and that the infant was thereby rendered immediately notify the parties of the permanently and substantially mentally time and place of such hearing, which and physically impaired, a rebuttable shall be held in the county where the presumption shall arise that the injury is injury occurred unless otherwise agreed a birth-related neurological injury as to by the parties and authorized by the defined in s (2). division., (b) Whether obstetrical services were (2) The parties to the hearing shall delivered by a participating physician in include the claimant and the association. the course of labor, delivery, or resuscitation in the immediate (3) Any party to a proceeding under ss. postdelivery period in a hospital; or by a may, upon application certified nurse midwife in a teaching to the administrative law judge setting hospital supervised by a participating forth the materiality of the evidence to physician in the course of labor, '.,be given, serve interrogatories or cause delivery, or resuscitation in.-' the ~ the depositions of witnesses residing immediate postdelivery, period.',:in a '., i: within or without the state to be taken, hospital. the costs thereof to be taxed as expenses incurred in connection with the filing of (c) How much compensation, if any, is a claim. Such depositions shall be taken awardable pursuant to s after giving notice and in the manner prescribed for the taking of depositions (2) If the administrative law judge in actions at law, except that they shall determines that the injury alleged is not be directed to the administrative law a birth-related neurological injury or that judge before whom the proceedings may obstetrical services were not delivered be pending. by a participating physician at the birth, she or he shall enter an order and shall History.--s. 66, ch. 88-1; s. 19, ch. 91- cause a copy of such order to be sent 46; s. 2, ch ; s. 310, ch immediately to the parties by registered or certified mail Detemlination of claims; presumption; findings of administrative (3) By becoming a participating law judge binding on participants.-- physician, a physician shall be bound for all purposes by the finding of the (1) The administrative law judge shall administrative law judge or any appeal make the following detemlinations based therefrom with respect to whether such upon all available evidence: injury is a birth-related neurological injury. (a) Whether the injury claimed is a birth-related neurological injury. If the History.--s. 68, ch. 88-1; s. 4, ch. 89- claimant has demonstrated, to the 186; s. 21. ch ; s. 3, ch ; s. satisfaction of the administrative law 312, ch ; s. 1805, ch judge, that the infant has sustained a

6 -- ".,co'" --".., ",...., '.' ';{., Administrative law judge awards the infant is contractually entitled to for birth-related neurological injuries; receive reimbursement, pursuant to the notice of award.-- provisions of any health or sickness insurance policy or other private sustained (1) Upon determining a birth-related that an neuroj()gical infant has insurance program.. injury and that obstetrical services were Expenses included under this paragraph delivered by a participating physician at shall be limited to reasonable charges the birth, the administrative law judge prevailing in the same community for shall make an award providing similar treatment of injured persons compensation for the following items when such treatment is paid for by the relative to such injury: injured person. (a) Actual expenses for medically (b) 1. Periodic payments of an award to necessary and reasonable medical and the parents or legal guardians of the hospital, habilitative and training, infant found to have sustained a birthresidential, and custodial care, and related neurological injury, which award service, for medically necessary drugs, shall not exceed $100,000. However, at special equipment, and facilities, and for the discretion of the administrative law related travel. However, such expenses judge, such award may be made in a 'shall not include: lump sum. 1. Expenses for items or services that 2. Payment for funeral expenses not to the infant has received, or is entitled to exceed $1,500. receive, under the laws of any state or the Federal Government, except to the (c) Reasonable expenses incurred in extent such exclusion may be prohibited connection with the filing of a claim by federal law. under ss , including reasonable attorney's fees, which shall 2. Expenses for items or services that be subject to the approval and award of the infant has received, or is the administrative law judge. In contractually entitled to receive, from any prepaid health plan, health determining an award for attorney's fees, the administrative law judge shall -- maintenance organization, or other consider the following factors: private insuring entity. 1. The time and labor required, the 3. Expenses for which the infant has novelty and difficulty of the questions received reimbursement, or for which involved, and the skill requisite to the infant is entitled to receive perform the legal services properly. reimbursement, under the laws of any state or the Federal Government, except 2. The fee customarily charged in the to the extent such exclusion may be locality for similar legal services. prohibited by federal law. 3. The time limitations imposed by the 4. Expenses for which the infant has claimant or the circumstances. received reimbursement, or for which

7 ': I,'..' ::!. 4. The nature and length of the award involved in the appeal until the professional relationship with the qu~stions at issue therein shall have been claimant. fully determined. 5. The experience, reputation, and History.--s. 70, ch. 88-1; s. 23, ch. 91- ability of the lawyer or lawyers 46; s. 6, ch ; s. 314, ch performing services Enforcement of awards The contingency or certainty of a fee. (1) The administrative law judge shall (2) The award shall require the have full authority to enforce her or his immediate payment of expenses awards and to protect herself or himself previously incurred and shall require that from any deception or lack of future expenses be paid as incurred. cooperation in reaching her or his determination as to any award. Such (3) A copy of the award shall be sent authority shall include the power to immediately by registered or certified petition the circuit court for an order of mail to e~~h person served with. ~ '~opy contempt. 1 of the petition under s (2),.;;;.~,1;2: (2) A party may, if the circumstances so History.--s. 69, ch. 88-1; s. 5, ch. 89- warrant, petition the circuit court for 186; s. 22, ch ; s. 4, ch ; s. enforcement of a final award by the 313, ch administrative law judge Conclusiveness of History.--s. 71, ch. 88-1; s. 24, ch. 91- determination or award; appeal.-- 46; s. 5, ch ; s. 315, ch ; s. 1806, ch (1) A determination of the administrative law judge as to Limitation on claim.--any qualification of the claim for purposes of claim for compensation under ss. compensability under s or an that is filed more than award by the administrative law judge 5 years after the birth of an infant pursuant to s shall be conclusive alleged to have a birth-related and binding as to all questions of fact. neurological injury shall be barred. Review of an order of an administrative law judge shall be by appeal to the History.--s. 72, ch. 88-1; s. 38, ch. 88- District Court of Appeal. Appeals shall 277; s. 1, ch be filed in accordance with rules of procedure prescribed by the Supreme Assessments; plan of Court for review of such orders. operation.-- (2) In case of an appeal from an award (1) The assessments established of the administrative law judge, the pursuant to this section shall be used to appeal shall operate as a suspension of fmance the Florida Birth-Related the award, and the association shall not Neurological Injury Compensation Plan. be required to make payment of the

8 .." hi".,.ji. 2.' ~.,.f~;'., ~; (2) The assessments and appropriations appropriate revised plan of operation. If dedicated to the plan shall be the directors fail to do so, the administered by the Florida Birth- Department of Insurance shall Related Neurological Injury promulgate a plan of operation. The plan.compensation Association established in of operation approved or promulgated by s , in accordance with the the Department of Insurance shall following requirements: become effective and operational upon order of the Department of Insurance. (a) On or before July 1, 1988, the directors of the association shall submit (c) Amendments to the plan of to the Department of Insurance for operation may be made by the directors review a plan of operation which shall of the plan, subject to the approval of the provide for the efficient administration Department of Insurance. of the plan and for prompt processing of claims against and awards made on (3) All assessments shall be deposited behalf of the plan. The plan of operation with the Florida Birth-Related shall include provision for: Neurological Injury Compensation ~'I Association. The funds collected by the 1. Establishment of necessary facilities; association and any income therefrom.shall be disbursed only for the payment 2. Management of the funds collected of awards under ss and on behalf of the plan; for the payment of the reasonable expenses of administering the plan. 3. Processing of claims against the plan; (4) The following persons and entities.4. Assessment of the persons and shall pay into the association an initial entities listed in subsections (4) and (5) assessment in accordance with the plan to pay awards and expenses, which of operation: assessments shall be on an actuarially sound basis subject to the limits set forth (a) On or before October 1, 1988, each in subsections (4) and (5); and hospital licensed under chapter 395 shall pay an initial assessment of $50 per 5. Any other matters necessary for the infant delivered in the hospital during efficient operation of the birth-related the prior calendar year, as reported to the neurological injury compensation plan. Agency for Health Care Administration; provided, however, that a hospital (b) The plan of operation shall be owned or operated by the state or a subject to approval by the Department of county, special taxing district, or other Insurance after consultation with political subdivision of the state shall not representatives of state agencies which be required to pay the initial assessment collect revenue pursuant to this section or any assessment required by and interested individuals and subsection (5). The term "infant organizations. If the Department of delivered" includes live births and not Insurance disapproves all or any part of stillbirths, but the term does not include the plan of operation, the directors shall infants delivered by employees or agents within 30 days submit for review an of the Board of Regents or those born in

9 : :-..; : ".... t..f. a teaching hospital as defined in s. a. A resident physician, assistant The initial assessment and any resident physician, or intern in an assessment imposed pursuant to approved postgraduate training program, subsection (5) may not include any as defined by the Board of Medicine or infant born to a charity patient (as the Board of Osteopathic Medicine by defined by rule of the Agency for Health rule; Care Administration) or born to a patient for whom the hospital receives Medicaid b. A retired physician who has reimbursement, if the sum of the annual withdrawn from the practice of medicine charges for charity patients plus the but who maintains an active license as annual Medicaid contractuals of the evidenced by an affidavit filed with the hospital exceeds 10 percent of the total Department of Health. Prior to annual gross operating revenues of the reentering the practice of medicine in hospital. The hospital is responsible for this state, a retired physician as herein documenting, to the satisfaction of the defined must notify the Board of association, the exclusion of any birth Medicine or the Board of Osteopathic,]; from the computation of the assessment. Medicine and pay the appropriate :Upon demonstration of financial need by,assessments pursuant to this section; ": ~~ : i a hospital, the association may provide :' : for installment payments of assessments. c. A physician who holds a limited license pursuant to s and who is (b) 1. On or before October 15, 1988, all not being compensated for medical physicians licensed pursuant to chapter services; 458 or chapter 459 as of October 1, 1988, other than participating d. A physician who is employed full physicians, shall be assessed an initial time by the United States Department of assessment of $250, which must be paid no later than December 1, Veterans Affairs and whose practice is confined to United States Department of Veterans Affairs hospitals; or 2. Any such physician who becomes licensed after September 30, 1988, and e. A physician who is a member of the before January 1, 1989, shall pay into Armed Forces of the United States and the association an initial assessment of who meets the requirements of s. $250 upon licensure Any such physician. who becomes f. A physician who is employed full licensed on or after January 1, 1989, time by the State of Florida and whose shall pay an initial assessment equal to practice is confined to state-owned the most recent assessment made correctional institutions, a county health pursuant to this paragraph, paragraph department, or state-owned mental (5)(a), or paragraph (7)(b). health or developmental services facilities, or who is employed full time 4. However, if the physician is a by the Department of Health. physician specified in this subparagraph, the assessment is not applicable: (c) On or before December 1, 1988, each physician licensed pursuant to

10 ....' "..f ' chapter 458 or chapter 459 who wishes initial assessment equal to the most to participate in the Florida Birth- recent assessment made pursuant to this Related Neurological Injury paragraph, paragraph (5)(a), or Compensation Plan and who otherwise paragraph (7)(b). qualifies as a participating physician under ss shall pay an (5)(a) Beginning January 1, 1990, the initial assessment of $5,000. However, if persons and entities listed in paragraphs the physician is either a resident (4)(b) and (c), except those persons or physician, assistant resident physician, entities who are specifically excluded or intern in an approved postgraduate from said provisions, as of the date training program, as defined by the determined in accordance with the plan Board of Medicine or the Board of of operation, taking into account persons Osteopathic Medicine by rule, and is licensed subsequent to the payment of supervised by a physician who is the initial assessment, shall pay an participating in the plan, such resident annual assessment in the amount equal physician, assistant resident physician, to the initial assessments provided in." ii. or intern is deemed to be a participating paragraphs (4)(b) and (c). On January 1,.."."'~" -'. Ii': physician without the payment of the assessment. Participating physicians also 1991, and on each January 1 thereafter, the association shall determine the ~i include any employee of the Board of amount of additional assessments,.,' Regents who has paid the assessment necessary pursuant to subsection (7), in -required by this paragraph and paragraph the manner required by the plan of (5)(a), and any certified nurse midwife operation, subject to any increase supervised by such employee. determined to be necessary by the Participating physicians include any Department of Insurance pursuant to certified nurse midwife who has paid 50 paragraph (7)(b). On July 1, 1991, and percent of the physician assessment on each July 1 thereafter, the persons required by this paragraph and paragraph and entities listed in paragraphs (4)(b) (5)(a) and who is supervised by a and (c), except those persons or entities participating physician who has paid the who are specifically excluded from said assessment required by this paragraph provisions, shall pay the additional and paragraph (5)(a). Supervision shall assessments which were determined on require that the supervising physician January 1. Beginning January 1, 1990, will be easily available and have a the entities listed in paragraph (4)(a), prearranged plan of treatment for including those licensed on or after specified patient problems which the October 1, 1988, shall pay an annual supervised certified nurse midwife or assessment of $50 per infant delivered physician may carry out in the absence during the prior calendar year. The of any complicating features. Any additional assessments which were physician who elects to participate in determined on January 1, 1991, pursuant such plan on or after January 1, 1989, to the provisions of subsection (7) shall who was not a participating physician at not be due and payable by the entities the time of such election to participate listed in paragraph (4)(a) until July 1. and who otherwise qualifies as a participating physician under ss. (b) If the assessments collected pursuant shall pay an additional to subsection (4) and the appropriation

11 .;-~:""":..'9.+. " of funds provided by s. 76, chapter 88-1, assessment in excess of 0.25 percent of Laws of Florida, as amended by s. 41, that entity's net direct premiums written. chapter , Laws of Florida, to the plan from the Insurance Commissioner's 4. Casualty insurance carriers shall be Regulatory Trust Fund are insufficient to entitled to recover their initial and maintain the plan on an actuarially sound annual assessments through a surcharge basis, there is hereby appropriated for on future policies, a rate increase transfer to the association from the applicable prospectively, or a Insurance Commissioner's Regulatory combination of the two. Trust Fund an additional amount of up to $20 million. (6)(a) The association shall make all assessments required by this section, (c)l. Taking into account the except initial assessments of physicians assessments collected pursuant to licensed on or after October 1, 1988, subsection (4) and appropriations from which assessments will be made by the the Insurance Commissioner's Department of Business and Professional.c""'~ Regulatory Trust Fund, if required to Regulation, and except assessments of.,,-,~ : P1aintain the plan on an actuarially sound casualty insurers ("pursuant.!, to 4.:-:~ basis, the Department of Insurance shall subparagraph: (5)(c)1., which "? i' require each entity licensed to issue assessments will be made by the ~ '; casualty insurance as defined in s. Department of Insurance. Beginning (1)(b), (k), and (q) to pay into October 1, 1989, for any physician the association an annual assessment in licensed between October 1 and an amount determined by the department December 31 of any year, the pursuant to paragraph (7)(a), in the Department of Business and Professional manner required by the plan of Regulation shall make the initial operation. assessment plus the assessment for the following calendar year. The 2. All annual assessments shall be made Department of Business and Professional on the basis of net direct premiums Regulation shall provide the association, written for the business activity which with such frequency as determined to be forms the basis for each such entity's necessary, a listing, in a computerinclusion as a funding source for the readable form, of the names and plan in the state during the prior year addresses of all physicians licensed ending December 31, as reported to the under chapter 458 or chapter 459. Department of Insurance, and shall be in the proportion that the net direct (b) 1. The association may enforce premiums written by each carrier on collection of assessments required to be account of the business activity forming paid pursuant to ss by the basis for its inclusion in the plan suit filed in county court. The bears to the aggregate net direct association shall be entitled to an award premiums for all such business activity of attorney's fees, costs. and interest written in this state by all such entities. upon the entry of a judgment against a physician for failure to pay such 3. No entity listed in this paragraph assessment, with such interest accruing shall be individually liable for an annual until paid. Notwithstanding the

12 ':;""....'...,.1, " provisions of chapters 47 and 48, the Insurance shall prepare a statement as to association may file such suit in either the contribution rate applicable to the Leon County or the county of the entities listed in paragraph (5)(c). residence of the defendant. However, at no time shall the rate be greater than 0.25 percent of net direct 2. The Department of Business and premiums written. Professional Regulation, upon ";'c' ~:, notification by the association that an assessment has not been paid and that (b) If the Department of Insurance finds that the plan cannot be maintained on an there is an unsatisfied judgment against a actuarially sound basis based on the physician, shall not renew any license to assessments and appropriations listed in practice for such physician issued subsections (4) and (5), the department pursuant to chapter 458 or chapter 459 shall increase the assessments specified until such time as the judgment is in subsection (4) on a proportional basis satisfied in full. as needed.,..(c) The Agency for Health Care (8) The association shall report to the :;;1 Administration shall, -upon notification Legislature its determination as -.to the :.~.~,.. by the association that an assessment has annual cost of maintaining the fund on,."'i.' not been timely paid, enforce collection an actuarially sound basis. In making its of such assessments required to be paid determination, the association.. shall by hospitals pursuant to ss consider the recommendations of all Failure of a hospital to pay hospitals, physicians, casualty insurers, such assessment is grounds for attorneys, consumers, and any disciplinary action pursuant to s. associations representing any such notwithstanding any provision person or entity. Notwithstanding the of law to the contrary. provisions of s , all hospitals, casualty insurers, departments, boards, (7)(a) The Department of Insurance commissions, and legislative committees shall undertake an actuarial investigation shall provide the association with all of the requirements of the plan based on relevant records and information upon the plan's experience in the first year of request to assist the association in operation and any additional relevant making its determination. All hospitals information, including without limitation shall, upon request by the association, the assets and liabilities of the plan. provide the association with information Pursuant to such investigation, the from their records regarding any live Department of Insurance shall establish birth. Such information shall not include the rate of contribution of the entities the name of any physician, the name of listed in paragraph (5)(c) for the tax year any hospital employee or agent, the beginning January 1, Following name of the patient, or any other the initial valuation, the Department of information which will identify the Insurance shall cause an actuarial infant involved in the birth. Such valuation to be made of the assets and information thereby obtained shall be liabilities of the plan no less frequently utilized solely for the purpose of than biennially. Pursuant to the results of assisting the association and shall not such valuations, the Department of subject the hospital to any civil or

13 ~,'.,...~,. criminal liability for the release thereof. association shall notify the Governor, the Such information shall otherwise be Speaker of the House of Representatives, confidential and exempt from the the President of the Senate, the provisions of s (1) and s. 24(a), Department of Insurance, the Agency for Art. I of the State Constitution. Health Care Administration, the Department of Health, and the (9)(a) Within 60 days after a claim is Department of Business and Professional filed, the association shall estimate the Regulation of this suspension. present value of the total cost of the claim, including the estimated amount to (d) If any person is precluded from I be paid to the claimant, the claimant's asserting a claim against the association attorney, the attorney's fees of the because of paragraph (c), the plan shall association incident to the claim, and not constitute the exclusive remedy for any other expenses that are reasonably such person, his or her personal anticipated to be incurred by the representative, parents, dependents, or association in connection with the next of kin. adjudication and payment of the claim. : For purposes of this,estimate,-. the History.--s. 73, ch. 88-1; s. 39, ch.,88- :~.;j association should include the maximum 277; s. 44, ch ; s. 6, ch. 89;:186;.~ ; benefits for noneconomic damages. s. 103, ch ; s. 122, ch ; s. 1, ch ; s. 94, ch ; s: 66, (b) The association shall revise these ch ; s. 1, ch ; s. 248, ch. estimates quarterly based upon the actual ; s. 426, ch ; s. 1807, ch. costs incurred and any additional ; s. 81, ch ; s. 167, ch. 98- information that becomes available to 166; s. 288, ch. 99-8; s. 227, ch the association since the last review of 160. this estimate. The estimate shall be reduced by any amounts paid by the Florida Birth-Related association that were included in the Neurological Injury Compensation current estimate. Association; board of directors.-- (c) In the event the total of all current (l)(a) The Florida Birth-Related estimates equals 80 percent of the funds Neurological Injury Compensation Plan on hand and the funds that will become shall be governed by a board of five available to the association within the directors which shall be known as the next 12 months from all sources Horida Birth-Related Neurological described in subsections (4) and (5) and Injury Compensation Association. The paragraph (7)(a), the association shall association is not a state agency, board, not accept any new claims without or commission. Notwithstanding the express authority from the Legislature. provision of s , the association is Nothing herein shall preclude the authorized to use the state seal. association from accepting any claim if the injury occurred 18 months or more (b) The directors shall be appointed for prior to the effective date of this staggered terms of 3 years or until their suspension. Within 30 days of the successors are appointed and have effective date of this suspension, the qualified.

14 ,..'.,;, ~.; ~.~ (b) The Insurance Commissioner shall (c) The directors shall be appointed by promptly notify the appropriate medical the Insurance Commissioner as follows: association upon the occurrence of any vacancy, and like nominations may be 1. One citizen representative. made for the filling of the vacancy. 2. One representative of participating (3) The directors shall not transact any physicians. business or exercise any power of the plan except upon the affinnative vote of 3. One representative of hospitals. three directors. The directors shall serve without salary, but each director shall be 4. One representative of casualty reimbursed for actual and necessary insurers. expenses incurred in the performance of his or her official duties as a director of 5. One representative of physicians the plan in accordance with s other than participating physicians. The directors shall not be subject to any liability with respect to :...' the ;;c "'(2)(a) The Insurance Commissioner administration of the plan.,,);3 ~ may select the representative of the '. participating physicians from a list of at (4) The board of directors shall have the least three names to be recommended by power to: the Florida Obstetric and Gynecologic Society; the representative of hospitals (a) Administer the plan. from a list of at least three names to be recommended by the Florida Hospital (b) Administer the funds collected on Association; the representative of behalf of the plan. casualty insurers from a list of at least three names, one of which is (c) Administer the payment of claims on recommended by the American behalf of the plan. Insurance Association, one by the Alliance of American Insurers, and one (d) Direct the investment and by the National Association of reinvestment of any surplus funds over Independent Insurers; and the losses and expenses, provided that any representative of physicians other than investment income generated thereby participating physicians from a list of remains credited to the plan. three names to be recommended by the Florida Medical Association and a list of (e) Reinsure the risks of the plan in three names to be recommended by the whole or in part. Florida Osteopathic Medical ' Association. In no case shall the (f) Sue and be sued, and appear and Insurance Commissioner be bound to defend, in all actions and proceedings in make any appointment from among the its name to the same extent as a natural nominees of such respective person. associations. (g) Have and exercise all powers necessary or convenient to effect any or

15 .:,;. ' all of the purposes for which the plan is or its representative is confidential and created. exempt from the provisions of s (1) and s. 24(a), Art. I of the State (h) Enter into such contracts as are Constitution until termination of necessary or proper to administer the litigation or settlement of the claim, plan. although medical records and other portions of the claim file may remain (i) Employ or retain such persons as are confidential and exempt as otherwise necessary to perform the administrative provided by law. Any book, record, and financial transactions and document, audit, or asset acquired by, responsibilities of the plan and to prepared for, or paid for by the perform other necessary and proper association is subject to the authority of functions not prohibited by law. the board of directors, which is responsible therefor. G) Take such legal action as may be necessary to avoid payment of improper (c) Each person authorized to receive claims. deposits, issue vouchers, or withdraw or " otherwise disburse any funds shall post a (k) Indemnify any employee, agent, blanket fidelity bond in an amount member of the board of directors or reasonably sufficient to protect plan alternate thereof, or person acting on assets, as determined by the plan of behalf of the plan in an official capacity, operation. The cost of such bond will be for expenses, including attorney's fees, paid from the assets of the plan. judgments, fines, and amounts paid in settlement actually and reasonably (d) Annually, the association shall incurred in connection with any action, furnish audited financial reports to any suit, or proceeding, including any appeal plan participant upon request, to the thereof, arising out of such person's Department of Insurance, and to the capacity acting on behalf of the plan; Joint Legislative Auditing Committee. provided that such person acted in good The reports must be prepared in faith and in a manner he or she accordance with accepted accounting reasonably believed to be in, or not procedures and must include such opposed to, the best interests of the plan information as may be required by the and provided that, with respect to any Department of Insurance or the Joint criminal action or proceeding, the person Legislative Auditing Committee. At any had reasonable cause to believe his or time determined to be necessary, the her conduct was lawful. Department of Insurance or the -Joint Legislative Auditing Committee may (5)(a) Money may be withdrawn on conduct an audit of the plan. account of the plan only upon a voucher as authorized by the association. (e) Funds held on behalf of the plan are funds of the State of Fiorida. The (b) All books, records, and audits of the association may only invest plan funds plan are open for reasonable inspection in the investments and securities to the general public, except that a claim described in s , and shall be file in the possession of the association subject to the limitations on investments

16 "'...;..~ "':. ~ - contained in that section. All income derived from such investments will be credited to the plan. in s (9)(b) or when notice is not practicable. History.--s. 75, ch. 88-1; s. 8, ch. 89- History.--s. 74, ch. 88-1; s. 40, ch ; s. 4, ch ; s. 91, ch ; s. 7, ch ; s. 2, ch ; s. 427, ch ; s. 1808, ch ; s. 3, ch ; s. 2, ch INote.--As amended by s. 2, ch The sentence was also amended by s. 3, ch , and that version reads: "Funds held on behalf of the plan are funds of this state, and the association may invest plan funds only in the investments and securities described in s. --'.: and are subject to the limitations ':;") 'on investments contained in c' that t." --.,~, r,.--'.. '0$\- sec Ion. -".,; \~:.\ ',- '."'-T,;,;,;'.! Ii:. r ::'-" 'T::>m-t' Notice to obstetrical patients of : " ; ".. -;:;$ participation in the plan.--each hospital :,}r! with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s (4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birthrelated neurological injuries. Such notice shall be provided on forms furnished by ';-, the association and shall include a clear -, and concise explanation of a patient's -1'1 rights and limitations under the plan. ;:: The hospital or the participating 'Jr' physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined

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