Appellants/cross-appellees, the Florida Birth-Related Neurological Injury Compensation Association (“NICA”), Plantation General Hospital, Dr. John L. Rinella, Dr. Joaquin Taranco, and each doctor’s professional association, seek review of a final order entered by the administrative law judge (“ALJ”) on a petition for benefits filed by appellees/cross-appellants, Bassam and Rayya Abifaraj, pursuant to
Appellees initially filed a medical malpractice lawsuit in the circuit court against appellants Plantation General Hospital, Dr. Rinella, Dr. Taranco, and each doctor’s professional association, seeking damages for the wrongful death of their baby, Sam-er Abifaraj, and for physical injury to Ray-ya Abifaraj caused by the rupture of her uterus. The circuit court entered an order abating appellees’ claims until the necessary determinations under section 766.304, Florida Statutes, were made by the ALJ. Appellees subsequently filed a petition for benefits under the NICA plan with the Division of Administrative Hearings, in which they asserted that the NICA plan was not their exclusive remedy because there was clear and convincing evidence that the healthcare providers acted with willful and wanton disregard for human rights, safety, or property and because they did not receive the statutorily required notice of Dr. Rinella’s participation in the NICA plan. Appellant NICA, which administers the NICA plan, responded to the petition and agreed that the claim was compensable. After determining that appellees’ claim was compen-sable under the NICA plan and that Dr. Rinella provided adequate notice while the hospital did not, the ALJ found that he was without jurisdiction to decide the willful and wanton issue. This appeal followed.
We review an ALJ’s interpretation of the NICA plan de novo. Schur v. Fla. Birth-Related Neurological,
Section 766.303(2), Florida Statutes (1997), provides:
The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical negligence claim with respect to such injury; except that a civil action shall not be foreclosed tvhere there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard for 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 becomes conclusive and binding as provided for in s. 766.311.
(Emphasis added). Appellants argue that permitting the willful and wanton issue to be decided in the administrative proceeding would be more efficient than would requiring that the issue be resolved in a civil action in circuit court. However, the statute does not specify what entity has jurisdiction to decide the applicability of the willful and wanton exception to NICA plan exclusivity.
Although it has been determined that the ALJ is without jurisdiction to decide whether a healthcare provider is entitled to immunity from civil suit under the NICA plan, see Depart v. Macri,
Accordingly, we AFFIRM the final order.
Notes
. Although the incident giving rise to appel-lees' claim, Samer’s birth, occurred in 1997, the 1998 amendment applies retroactively to all NICA plan claims filed after July 1, 1998, regardless of the date of birth. See Ch. 98-113, § 6, at 814-15, Laws of Fla.
. Section 766.316, Florida Statutes (1997), provides, that "[e]ach hospital with a participating physician on its staff and each participating physician ... shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and
