Florida has established a program to compensate families with children who suffer certain birth injuries. The Florida Birth-Related Neurological Injury Compensation Act, or NICA, was enacted to assist families with their child’s future medical needs and compensate for other losses. It is a no-fault program, so parents do not have to establish that the medical providers were negligent or committed any errors. However, NICA claims are the exclusive remedy for a child whose birth injury meets the eligibility criteria.
Not all birth injuries qualify for NICA compensation. For those injuries not eligible for NICA, families can file a lawsuit against the negligent health care providers to recover compensation.
If your child has suffered an injury during labor or delivery, learn your legal options. The Fort Lauderdale medical attorneys at Freedland Harwin Valori Gander understand what types of birth injuries qualify for NICA, the available benefits in the program, and your legal options for birth injuries that do not qualify for the program. We can evaluate your case and pursue a strategy for compensation that’s in your family’s best interests.
What Is Florida’s NICA?
The Florida Legislature established the Neurological Injury Compensation Association in 1988 to manage the Florida Birth-Related Neurological Injury Compensation Plan. The state enacted this program under Florida Statute Section 766.303 as a solution to a sharp increase in medical malpractice claims against OB-GYNs for birth-related injuries.
The increase in birth injury claims was so great that Florida’s medical malpractice premiums for OB-GYNs averaged $185,460 in 1985 compared to the national average of $23,300. This problem made doctors hesitant to treat high-risk patients and practice in high-risk specialties within the OB-GYN field.
The NICA compensation plan offers a compromise between the interests of lowering the litigation costs for birth-related injuries and protecting the financial needs of children with a birth injury. As a compromise, NICA established a claim process for neurological birth injuries. It operates outside the traditional legal process for medical malpractice claims in Florida. It is a no-fault system, meaning parents do not have to establish that negligence caused the injury.
If a child is eligible for this type of compensation, they may not pursue other legal actions for compensation and are limited to receiving only the care that NICA covers.
Who Is Eligible for a NICA Claim? Do You Qualify for NICA Benefits?
You must meet several requirements to qualify for NICA benefits. They include the following eligibility criteria:
- The child’s birth must have been in a Florida hospital.
- The child must be a live infant weighing at least 2,500 grams for a single gestation or at least 2,000 grams for a multiple gestation.
- The child must have suffered a brain or spinal cord injury during labor, delivery, or resuscitation in the immediate post-delivery period.
- The cause of the child’s injury must have been from oxygen deprivation or mechanical injury.
- The neurological injury left the child with a permanent and substantial impairment of their mental and physical faculties.
- The cause of the child’s disability or death cannot be related to a genetic or congenital abnormality.
- The physician or certified nurse midwife who provided the obstetrical services must have participated in the NICA program on the date of the child’s birth. Not all Florida physicians must participate because of NICA exemptions that can apply to them.
You must meet each of these criteria to qualify for NICA payments. If you meet all of the requirements, in certain circumstances, participation is mandatory. Our birth injury attorneys have extensive knowledge and familiarity with the NICA claim process and can help you determine your qualifications. They can also help you explore if your participation in NICA is required or if you have other options available.
What Are Your Legal Options if Your Child Isn’t Eligible for NICA Florida Birth Injury Funds?
You may pursue other legal options if your child’s birth injury does not meet the NICA requirements. The cause and circumstances surrounding the birth injury may allow for a medical malpractice lawsuit or another civil claim, which can compensate you for medical bills and other damages.
The lawyers at FHVG have been successful on numerous occasions in proving that either hospitals or physicians did not give appropriate notice and NICA did not apply. In those circumstances, the families were able to pursue their claims and obtain the justice they deserve. While in certain circumstances, NICA may be the best option for families, but in many others is not adequate compensation and care for a profoundly injured child. Every case is different, requiring experienced birth injury lawyers to assist with uncovering your family’s best option.
Medical malpractice claims require proof that a physician breached their standard of professional care and was negligent in causing the birth injury. Our attorneys can review your medical records and other details about the cause of the birth injury to identify claims outside of NICA.
NICA Rules To Know
You can file a petition with the Florida Division of Administrative Hearings to initiate a NICA claim for benefits. You have the choice of filing this petition on your own or with the help of an attorney.
The petition goes to a group of NICA nurses and medical experts who will determine if the claim meets all the eligibility criteria. If you are eligible, an administrative law judge reviews your claim to determine the amount of compensation available. Florida law has a strict five-year deadline for filing a NICA claim that begins on the date of your child’s birth.
What Your NICA Benefits Can Include
A successful NICA claim can cover your child’s reasonable medical needs over their lifetime. The precise amount of these benefits will vary from child to child but may include compensation for the following:
- Medical care and treatments
- Insurance co-pays
- Physical therapy
- Prescriptions
- Equipment and handicap modifications
- Transportation
- Nursing care
Parents can also receive an initial one-time payment of up to $250,000. A death benefit of $50,000 is also available to assist with the cost of funeral services. You can read more about the specific expenses that your NICA claim may cover in the program’s Benefits Handbook.
While NICA has many potential benefits, it also has limitations compared to a medical malpractice lawsuit. For example, NICA will not provide benefits for anything your personal insurance or another government program covers. NICA benefits also exclude compensation for the child’s lost future earnings or the non-economic losses from the injury, such as pain and suffering.
NICA in the News: Program Pays $51 Million Over Alleged Medicaid Violations
In 2022, NICA agreed to a $51 million payment to settle claims that it violated the False Claims Act by requiring families to submit claims to Medicaid before seeking benefits through NICA. This policy violated federal law because Medicaid is only to be used as the payer of last resort. Families seeking NICA Florida payments no longer need to submit claims to Medicaid first.
Meet With Our Birth Injury Attorneys About a NICA Claim or Medical Malpractice Lawsuit
With 20+ years of experience, Freedland Harwin Valori Gander has built a dedicated team of attorneys, including Daniel Harwin and Michael Freedland, who are committed to helping families after a child’s birth injury.
An initial consultation with one of our attorneys can help you understand the available legal options for your birth injury and the possibility of a NICA claim. We have recovered over $2.6 billion for our deserving clients. Get started on your case today with a free consultation.
