HIGHLANDS COUNTY HOSPITAL DISTRICT, et al., Appellants, v. DEPARTMENT OF INSURANCE, et al., Appellees. SOUTHEAST VOLUSIA HOSPITAL DISTRICT, et al., Apellants, v. DEPARTMENT OF INSURANCE, et al., Appellees.
Nos. AS-52, AU-134.
District Court of Appeal of Florida, First District.
May 29, 1984.
Rehearing Denied July 5, 1984.
Peter J. Winders and Jacob D. Varn, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa; John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, Tallahassee; and Adams, Ward, Hunter, An-gones & Adams, Miami, for appellants Highlands County Hospital District, et al.
G. Bruce Hill, of Adams, Hill & Fulford, Orlando; Scott R. McMillen, of Mateer, Harbert, Bechtel & Phalin, Orlando; and Ben H. Wilkinson, Neil H. Butler and Cathi C. O’Halloran, of Pennington, Wilkinson & Dunlap, Tallahassee, for appellants Southeast Volusia Hospital District, et al.
David A. Yon, Legal Department, Department of Insurance, Tallahassee, for ap-pellee Department of Insurance.
Richard B. Collins and Craig A. Dennis, of Perkins & Collins, Tallahassee; Talbot D’Alemberte and Jeffrey B. Crockett, of Steel, Hector & Davis, Miami, for appellee Florida Patient’s Compensation Fund.
*92THOMPSON, Judge.
This is an appeal by a number of hospitals from an order of the Department of Insurance (Department) denying a request by the hospitals that the Department conduct a formal administrative hearing for the purpose of setting additional fees to be charged by the Florida Patients’ Compensation Fund (Fund), § 768.54, Fla.Stat., for the fiscal years 1976-77 and 1979-80, consolidated with an appeal from an order of the Department levying assessments against the hospitals and other fund members for the fiscal years 1976-77 and 1979-80. The hospitals contend they were entitled to notice and an opportunity to be heard regarding the setting of additional fees and that the Department did not set actuarially sound additional fees for the fiscal years 1976-77 and 1979-80. We affirm.
Although we agree with the hospitals that they were entitled to notice and an opportunity to be heard before additional fees for each fiscal year are determined by the Insurance Commissioner (Commissioner), we find that the hospitals are barred by laches from raising these issues at this late date. Due process requires that notice and an opportunity to be heard be given to parties before additional fees or assessments are determined by the Commissioner but these rights must be promptly asserted. There is no evidence that any of the hospitals timely requested a hearing nor that any of them timely attempted to bring an independent action to compel a hearing. The hospitals may have sustained damage but to give them the relief they seek now would adversely affect and result in an injustice to many other parties, including other Fund members and medical malpractice claimants, as a result of the hospitals’ neglect to timely act.
AFFIRMED.
BARFIELD, J., concurs.
ERVIN, C.J., specially concurs.
ERVIN, Chief Judge,
specially concurring.
It may seem somewhat anomalous to refrain from requiring an administrative hearing when the hospitals did not obtain a clear point of entry into the administrative process at the time fees were set for the fiscal years 1976-77 and 1979-80. Nevertheless, I concur, under the unique circumstances of this case, with the conclusion reached. Florida courts have generally recognized that if administrative remedies are inadequate, the exhaustion doctrine may be dispensed with. See State ex rel Dept. of General Services v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977). Federal courts, moreover, have often declined to require adherence to the exhaustion doctrine if it is determined that the prescribed administrative procedure is clearly inadequate to prevent irreparable injury. American Federation of Government Employees, Local 1904 v. Resor, 442 F.2d 993, 994-95 (3d Cir.1971); accord, Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974).
The hospitals before us were aware, under the statutory scheme establishing the Patient’s Compensation Fund, section 768.-54(3)(c), Florida Statutes (1977), that additional assessments might thereafter be made if the fees established for a given fiscal year proved inadequate. Certainly they understood that assessments might be imposed several years after the year in question. Knowing all of this they should also have comprehended that the rights of others — physicians and injured plaintiffs— might be affected if they delayed an attack on the amount of the fees originally charged until an assessment was made. I therefore agree that appellants received all that they were entitled to under the Administrative Procedure Act: a section 120.57(1) hearing following the levy of the assessments.