Twelve Ways to Avoid a Determination of NICA Compensability in a Medical Malpractice Case

A medical malpractice claim can be very complicated, especially when it involves a baby’s brain injury. It can take a long time to resolve and costs a lot of money. The baby’s family will also suffer emotionally and financially. The damages in these cases are usually very high because the baby may need a lot of medical care for a long time. In 1988, the Florida Legislature created NICA to provide compensation for babies who suffer neurological injuries during birth. If a claim falls under NICA, it has to be resolved in an administrative court by a judge, and the maximum compensation is $100,000, or $10,000 if the baby dies. To qualify for NICA compensation, the injury has to be neurological, occur during birth, be due to oxygen deprivation or mechanical injury, result in a substantial mental and physical impairment, and meet several other requirements. If a claim doesn’t meet these requirements, it can be pursued as a regular medical malpractice lawsuit. If a defendant says they should be compensated under NICA, the case will be sent to a special NICA court. The regular court can’t do anything about it. The plaintiff can ask the NICA court to make a quick decision, and if NICA doesn’t cover the claim, they can go back to the regular court. To qualify for NICA, the injury has to be to the brain or spinal cord. But not all brain or spinal injuries during birth qualify for NICA. For example, a tear in the nerves doesn’t count. The NICA court will decide if the injury is serious enough for NICA. NICA provides compensation for babies who suffer neurological injuries during labor, delivery, or in the immediate postdelivery period. The injury could be from lack of oxygen or mechanical injury, and it must result in significant mental and physical impairment. The baby also needs to be alive after birth for the claim to be considered NICA-compensable. If the injury occurs before or after this specific time frame, or if the baby is not significantly impaired, the claim will not be covered by NICA. If a baby is injured during birth, they can only get compensation from NICA if it happened in a hospital. Home births or births in other places don’t count. A hospital in Florida must be licensed for the injury to be covered by NICA. NICA does not cover genetic or congenital abnormalities. Babies must weigh at least 2,500 grams (about 5.5 pounds) at birth to qualify, unless they are part of a multiple birth, in which case the weight requirement is 2,000 grams (about 4.5 pounds). Patients must sign a form acknowledging that they have been informed about NICA in order for their claim to be considered. Hospitals and doctors must inform patients before delivery if they are part of NICA. Claims must be filed before the child’s fifth birthday, or in some cases, their eighth birthday. If a healthcare provider has been accused of causing harm to an infant, there are certain factors that need to be considered before the case is sent to a special court for infants. These factors include things like whether the healthcare provider acted in bad faith or with evil intent, and whether there is clear evidence of this. If these factors are proven, the case can stay in regular court instead of going to the special infant court. This is important because the special infant court has limits on how much money can be awarded, so it’s important to make sure the case is handled in the right place. If a claim for birth-related neurological injury is denied, the person can still sue for compensation under common law and statutory law. The decision about compensability is made by an administrative law judge (ALJ), and this decision is final. There have been cases where certain injuries were found not to be related to birth and therefore not compensable under the law. Florida Birth-related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings decided that a baby who suffered brain damage due to lack of oxygen could receive compensation if they had significant mental and physical impairments. This means they would need help with learning, communication, and physical functions. A similar case, Matteini v. Florida Birth-Related Neurological, also dealt with this issue. Joyner v. Florida Birth-related Neurological Injury and Chattic v. Florida Birth-related Neurological Injury are other cases related to this issue. If a patient has an emergency medical condition, like in Behan v. Florida Birth-related Neurological Injury Compensation Association, then they don’t need to be given notice before receiving medical treatment. This collection of legal citations and case law discusses various statutes and court cases related to birth-related neurological injuries in Florida. It includes information about notice requirements, statute of limitations, and other legal aspects related to such cases. The author, Jon Gilbert, practices law in Tampa, Florida. The column is submitted on behalf of the Trial Lawyers Section of The Florida Bar.

Source: https://www.floridabar.org/the-florida-bar-journal/twelve-ways-to-avoid-a-determination-of-nica-compensability-in-a-medical-malpractice-case/