The Injury Litigation Blog

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Florida’s Birth Injury Fund

By Byron Warnken

Why Are Parents Seeking Justice for Birth Injuries Stripped of Their Right to Sue?


When a child sustains a severe birth injury because of medical negligence, they are consigned to a potential lifetime of mental and physical impairment. But they aren’t the only ones who endure hardship. Their parents are often forced to navigate a new reality of unending medical treatment, financial stress, and long-term caregiving for their disabled child. This strain on families can be overwhelming. So naturally, some parents will pursue their right to file a medical malpractice claim to recover damages and hold negligent doctors responsible. 


But in Florida, parents of children who are victims of a birth injury can be denied this right. That’s because Florida is one of only two states where doctors and hospitals are largely shielded from legal repercussions when childbirth goes wrong. (In some cases, parents do retain the rights to bring a cause of action for damages. Any Florida parent with a birth injured child should contact a Florida birth injury lawyer to determine what his or her options are.)


A State Program Protects Florida Doctors From Birth Injury Lawsuits

In 1988, Florida legislatures devised a way for hospitals and physicians to avoid expensive birth injury verdicts and lawsuits – by enacting a no-fault, state-funded program to compensate birth injured children in place of civil damages. Known as the Florida Birth-Related Neurological Injury Compensation Association (NICA), the program provides an initial payment of $250,000 to families who file an accepted claim and “medically necessary and reasonable expenses” for the lifetime of an eligible disabled child.


NICA was designed to address the rising cost of medical malpractice insurance that alarmed the medical industry in the late 1980s. And superficially, it can at least claim to have achieved that purpose. Data has been created/recorded that indicates NICA saves Florida OB-GYN’s average $57,535 annually in malpractice premiums. 


But OB-GYN providers in Miami-Dade and Broward counties, two of the most populated regions in Florida, still have some of the highest malpractice insurance rates in the nation – including regions that don’t have a state-funded birth injury fund programs like NICA.  And the original rationale for implementing NICA – that skyrocketing malpractice premiums were causing a “mass exodus” of OB-GYN providers from Florida – belies that the number of OB-GYN providers in the state increased by 92% in the years before NICA’s enactment. 


Families Are Left With Few Options

On its surface, NICA can seem like salvation to new parents grappling with the prospect of lifetime care for a birth injured child. That is, until they realize that they forfeit their right to a medical malpractice lawsuit under Florida statute by participating in the program. And since NICA is considered a no-fault system, accepting benefits from the program means leaving a potential multi-million-dollar lawsuit verdict or settlement on the table – even if there is compelling evidence that medical negligence caused a child’s birth injury. 


So why do parents of birth injured children give up the chance to pursue a substantial lawsuit award by accepting NICA benefits? Often, they are left with no choice. Under Florida law, when a baby is born with brain impairments, parents can file suit against the doctor or hospital who delivered them. However, the defendants may then request that a judge pause the lawsuit and require the parents to file a NICA claim. The claim is then reviewed by a separate administrative judge, who determines if the child’s birth injury is compensable under NICA. A ruling of non-compensability means the parent can proceed with their lawsuit. But if the judge concludes the child’s injuries fall within NICA eligibility, they are enrolled in the program – regardless of the parent’s wishes – and their lawsuit is discharged. Again, as stated above, you need to consult with a Florida birth injury attorney to determine specifics of eligibility. See some of the best Florida birth injury attorneys here.


The Fight For Justice Can Become Fierce

While NICA places stringent limits on birth injury lawsuit options in Florida, there are criteria for enlistment into the program. Qualifying children must have physical and cognitive impairments sustained at birth, weigh at least 5.5 pounds, and have been delivered in a hospital setting. Hospitals and OB-GYN providers must also meet requirements to participate in the program. OB-GYN physicians must remit a $5,000 annual fee, and hospitals must pay a $50 per birth fee to remain enrolled. Providers must also properly notify patients of their participation in NICA with ample time to choose another doctor. 


If a NICA claim falls outside these parameters, parents can try to invoke an exception and retain the right to sue. But it’s often an uphill battle. A recent investigation of the NICA program by ProPublica in conjunction with the Miami Herald revealed the extreme lengths some providers will go to in their attempt to dodge a malpractice claim. In one instance, a young mother whose son sustained severe birth injuries at a St. Petersburg, FL hospital rejected NICA benefits and filed a malpractice suit instead. Attorneys for the hospital then claimed she was not acting in her son’s best interest by fighting for her right to a lawsuit and requested that a court-appointed guardian be assigned to make decisions about her son’s future health care. 


According to the ProPublica investigation, several other Florida health providers have also employed this strategy over the years to try and force families into the NICA program – and struggling parents of birth injured children are often legally outmatched against hospitals with annual profits in the billions and teams of in house attorneys. 


Birth Injured Kids Are Denied Program Benefits While Taxpayers Pick Up The Tab

Families enlisted into NICA are assured that the program will cover all “medically necessary” lifetime care for their child. But the ProPublica report and a Florida state audit of the program released last year reveal that program administrators routinely reject requests for coverage. Children with cerebral palsy who outgrow their wheelchairs are denied new models. Doctor recommendations for specialty mattresses to prevent bedsores are ignored. Case managers consult Google as justification to refuse payment for surgeries. 


Meanwhile, the NICA program’s assets are currently valued at $1.5 billion, and staff members and stakeholders are routinely treated to generous perks. 


Parents new to the NICA program are also often surprised to learn that the program considers itself a “payer of last resort” – meaning that they must submit claims for medical benefits on behalf of their children through health insurers first. This policy applies to private insurance and the taxpayer-funded Medicaid program, of which more than 50% of current NICA participants qualify. According to state Medicaid records obtained by ProPublica, NICA’s “payer of last resort” procedure cost taxpayers nearly $36 million over eight years. Many legal experts and a 2019 federal lawsuit still in litigation contend that the policy amounts to fraud by essentially forcing parents to file false claims with Medicaid – claims that NICA should be paying instead.


Recent public criticism of the NICA program has resulted in reform. Florida Governor Ron DeSantis signed a legislative overhaul of NICA policies last year, including an increase in the initial payout to enrollees and a pledge that parents will have easier access to benefits. And the long-time director of the program announced that she would resign in early 2022 after mounting claims of corruption, paving the way for new leadership.


But the promises of improvement to NICA don’t change a fundamental fact: it denies the families of birth injured children their day in court to hold doctors and hospitals accountable. And without the opportunity to pursue the right to file a medical malpractice lawsuit, it can seem like true justice is out of reach. 

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