The birth of a child is the greatest joy for parents. However, sometimes, bad outcomes occur during the birth process, and a child will be born with a neurological injury. The injury may be malpractice based upon the choices or conduct of the medical professionals attending to the birth. In Florida, most neurological birth injury cases are governed by NICA. The Neurological Injury Compensation Association (NICA) was established in 1988 by the Florida legislature, and it can help your child receive much needed medical care. However, the plan DOES NOT allow for the recovery of compensatory damages, i.e. pain and suffering, loss of enjoyment of life, etc.
NICA was established to administer the state’s Birth-Related Neurological Injury Compensation Plan, which provides no-fault coverage to parents of children who have sustained neurological injuries. There are strict requirements that must be met before a NICA claim will be approved, and if your claim is denied by NICA, your remedy is to bring a standard medical malpractice suit in civil court. Yes, a standard medical malpractice suit is more expensive and time consuming, but a malpractice suit does allow for recovery of compensatory damages.
There are eleven requirements your case must meet for your NICA claim to be granted. Very little variation is permissible. They are:
- The injury must be neurological;
- It must have occurred at birth;
- It must be due to oxygen deprivation or ‘mechanical injury’;
- The injury must be a substantial physical and/or mental impairment (impairment is defined elsewhere in Florida law);
- The child must be born alive, in a hospital where the alleged injury took place;
- The injury must not be due to any genetic abnormality or congenital problem;
- The child must weigh at least 2500 grams (2000 if not a single birth);
- The health care providers must be participating in the plan – that is, the hospital and doctor must be part of NICA;
- The patient (or their representative, if appropriate) must consent to treatment under NICA;
- The child must be younger than five years old at the time of the claim; and
- There must be no bad faith or malice – for example, a parent cannot make a claim to NICA solely to make a doctor appear incompetent or allege misconduct that never occurred.
It is important to keep in mind that neurological injury is a very strict term – it applies only to an injury to the brain or spine. Even if another type of injury later results in brain trauma or damage, such as a brachial plexus injury, shoulder dystocia, or a cephalohematoma, it is not an acceptable claim to bring under NICA because the injury itself was not to the brain or spine, even if it later caused one.
How NICA Judges Claims
If a claim is deemed acceptable to bring under NICA, two major factors will change. Firstly, the claim must now be judged not by a civil court or jury, but by an administrative law judge. Secondly, the maximum amount recoverable is $100,000, as per Florida statute – there may be a later benefit of up to $10,000, but the NICP cannot be tapped for more than that.
It is thus important to make certain that your case belongs under NICA. Alternatively, medical malpractice cases in Florida can be quite substantial. While NICA is a more certain option, a civil jury verdict will usually result in a larger award. However, it is important to remember that in a medical malpractice claim, the Plaintiff must prove that the treatment rendered fell below the standard of care, that is not a requirement under NICA
Contact A Personal Injury Attorney
If you or a loved one has a child who has possibly suffered birth injury, we can help. The firm of Kaire & Heffernan, LLC is staffed with experts, and we will put our knowledge to work for you. Contact our Miami office today for a free consultation.
Photo Credit: Steve Corey cc
Mark Kaire has been practicing law in Miami for nearly 15 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for 4 years.