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Florida Third DCA rules that plaintiffs electing to pursue a civil action in lieu of NICA benefits under the exception to NICA exclusivity in § 766.303(2) were permitted to dismiss NICA petition prior to determination of final award amount

On August 28, 2019, in Florida Birth-Related Neurological Injury Compensation Association v. Jimenez, No. 3D18-1814, the Florida Third DCA affirmed an ALJ’s order granting the plaintiff’s voluntary dismissal of their claim in an administrative proceeding filed pursuant to the terms of the Florida Birth-Related Neurological Injury Compensation Plan, sections 766.301-.316, Florida Statutes (2018). The petitioners’ child was born prematurely with cerebral palsy. The parents filed a NICA petition under protest, claiming that the NICA statute was unconstitutional and that they intended to file a medical malpractice claim in court without pursuing the statutory, exclusive administrative route established under the NICA Plan. The ALJ subsequently determined that the claim was compensable by NICA and retained jurisdiction to determine the amount of the award. The parents then advised NICA and the ALJ they would not accept any compensation or award from NICA and instead elected to pursue a civil action pursuant to an exception from NICA exclusivity under § 766.303(2), which provides that 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 a NICA award. After the ALJ granted the voluntary dismissal, NICA and the hospital involved in the delivery appealed to the Third DCA, arguing that §766.31(1) requires the ALJ to make an award prior to any dismissal of the case. The Third DCA concluded that that the parents should not be required to wait for a determination of compensation they had already decided to reject, citing a similar decision by the Fifth DCA in Fla. Birth-Related Neurological Injury Comp. Ass’n v. Johnson, No. 5D18-2551 (Fla. 5th DCA May 28, 2019).