Many parents and expectant parents in Florida do not realize that they may have already given up their right to sue if their infant was injured during labor and delivery. That is because the Florida Birth-Related Neurological Injury Compensation Act (“NICA” for short) was created by the Florida Legislature in 1988, specifically to exempt these devastating cases from the traditional court system. Despite the fact that an injury caused during birth can result in life-long disabilities for a child and significant long-term financial and emotional burdens for the parents, the legislature felt that the jury awards granted for these claims was too high, and attempted to eliminate these claims.
As with many pieces of legislation regarding medical malpractice, the principles behind this plan sound good. In theory, physicians who perform deliveries pay into the system, and when birth injuries occur parents can receive compensation for themselves and their injured child without having to go through the expensive and time-consuming process of pursuing medical malpractice litigation.
In practice, however, NICA has a great many limitations.
First of all, it is an exclusive remedy. Meaning that, if your case meets the NICA criteria, you cannot elect to go to through the traditional litigation method. You must go through NICA.
Then there are the caps on damages.
NICA allows for a one-time cash award to parents of injured infants of up to $100,000. A fraction of the real emotional cost of undertaking life-long care for a disabled child.
And if the infant unfortunately passes away from its injuries, the death benefit is only $10,000. For the death of an infant.
NICA also professes to provide for all actual reasonable and necessary expenses for care and treatment of an injured infant. However, this too has its limits. If you have health insurance, NICA only pays what your insurance does not. All claims must be submitted to and approved by NICA. And if you have to make improvements to your home to accommodate your disabled child, there are strict limitations on how much you can spend on that as well.
Moreover, the standards for determining whether or not you are eligible for NICA compensation in the first place are exceedingly high. The injury must be to the brain or spinal cord, be caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation immediately post-delivery. And the injured infant must be permanently and substantially mentally and physically impaired. Resulting in very few birth-injured infants actually qualifying for any NICA compensation at all.
If your birth injury case involves even a few of the above elements and you attempt to go around NICA and sue the doctor and hospital directly, their attorneys will most like raise NICA as a defense and force you go through NICA eligibility determination anyway. More often than not, it is just one more hoop that parents must jump through before they can be compensated on behalf of their injured child: file for NICA, be denied, and then proceed with medical malpractice lawsuit. Far from making the system simpler or less expensive, it has only added another layer of complexity for parents who are in desperate need of answers and aid for their injured children.
If your OBGYN is a NICA participant (and you can check their status here) both the doctor and the hospital must provide you notice of this well in advance of delivery. Though, in all the forms, consents, paperwork and brochures you are given in the course of receiving modern prenatal care, it is no wonder that many parents do not fully realize the ramifications of this “no fault” scheme.