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NICA: How to Avoid Its Unjust Limitations

How did NICA begin?

NICA came about during the 1970s and 80s as Florida physicians faced a medical malpractice liability crisis. Doctors were facing costly lawsuits, which consequently drove the price of their insurance premiums to all-time highs. Some doctors threatened to go on strike or leave the state, creating widespread fear that patients seeking treatment would be turned away.

The problem grew to such a proportion that the Florida Legislature decided to intervene. The legislature launched an investigation to determine how the issue could be solved. This investigation traced the root of the problem to obstetrician-gynecologists (OB-GYN) specialists, who disproportionately accounted for medical malpractice claims both in number of claims and amount of payout [1].

The Florida Legislature recognized that birth-related neurological injuries were an especially high risk and expensive tort subject for OB-GYN specialists. But rather than address the real issue—negligent doctors—the Florida Legislature created the Florida Birth-Related Neurological Injury Compensation Association, or NICA.

What is NICA?

NICA is a statutory organization that manages the Florida Birth Related Neurological Injury Compensation Plan (“Plan”). The Plan is a no-fault compensation program designed to compensate infants who suffered catastrophic injuries during the birth process. The Plan is intended to compensate victims for actual expenses related to necessary and reasonable care related to their injuries, but it does not compensate the victim for pain and suffering, nor does it award punitive damages.

Who Does the NICA Plan Affect?

The Plan applies to a child who has sustained a brain or spinal cord injury caused by oxygen deprivation (birth asphyxia) or mechanical injury during labor, delivery, or in the immediate post-delivery period in a hospital which renders the child permanently and substantially mentally and physically impaired [2].

Why Does NICA Matter?

If a victim’s injuries fall within the purview of NICA, the consequences can be disastrous in preventing proper compensation. Essentially, NICA assumes the liability of the actual wrongdoer. This means that every person or entity directly involved in the labor and delivery of the injured is immune from civil liability resulting from their negligence [3].

Irrespective of fault, the victim cannot sue the doctor, the nurse, or the hospital—they must file a claim with NICA. This grossly misplaces the liability and misdirects the family’s proper right for just compensation.

The claim against NICA will be heard by an administrative judge—not a jury—to determine eligibility [4]. Once eligibility is determined, the victim’s injuries will be compensated under the NICA Plan. This is significant because the rights and remedies granted by the NICA Plan exclude all other rights and remedies against any person or entity responsible for the injury.

Under the NICA Plan, compensation is capped at $100,000, regardless of the severity of the injuries or future costs of care [5]. Furthermore, the Plan caps compensation at $10,000 if the incident results in death to the child.

The statutorily capped remedies provided by NICA are significant limitations compared to the potential damages at issue in a medical malpractice lawsuit. This may seem counterintuitive, as cases involving a neurological injury to a newborn infant undoubtedly present a plethora of problems beyond most other medical malpractice claims. Aside from the emotional impact, infant neurological cases involve greater damages through greater lost income and more extensive treatment, to name a few.

Is $100,000 enough to compensate a family for nurses’s negligence that resulted in their child never leading a normal life? Is it enough money to compensate a child having to spend the rest of their life in a wheelchair, unable to feed themselves, or get married, or have children? Is $10,000 enough if a doctor’s carelessness causes your newborn baby to die before you ever get to hold it? Is it enough money to compensate the agony that would come with knowing that if the doctors had done things correctly your baby would still be alive?

Can My Birth Injury Claim Fall Under NICA?

In order to be removed from the medical malpractice realm and placed within the confines of a NICA claim, several factors must be met. They include the following:

  • The injury must be a neurological injury;
  • The injury must have occurred during birth;
  • The injury must be due to oxygen deprivation or mechanical injury;
  • The injury must be a substantial mental and physical impairment;
  • The infant must be born alive;
  • The birth and alleged injury must occur in a hospital;
  • The alleged injury cannot be due to a genetic or congenital abnormality;
  • The infant must weigh at least 2500 grams (approximately 5 lbs. 8 oz.) or 2000 grams (approximately 4 lbs. 6 oz.) in the case of multiple gestations;
  • The health care providers must be participating in NICA;
  • The patient must consent to treatment by NICA health care providers;
  • The child must be less than five-years old at the time of abatement to NICA;
  • The wrongdoer must not have acted with bad faith, malicious purpose, or willful or wanton disregard of human rights or safety.

For the victim, this long list of requirements may work to their advantage. Because each requirement must be met to fall under NICA, the family of a birth injury victim only needs to prove that one requirement does not exist in order to bring a claim for medical malpractice. This will allow the victim to circumvent the confines of NICA and receive the compensation they deserve.

Contact Dolman Law Group today, a firm with experienced, dedicated birth injury attorneys who fight to get you and your child the compensation they deserve.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765

(727) 451-6900

[1] Florida Statute § 766.301

[2] Florida Statute § 766.302

[3] Florida Statute § 766.303

[4] Florida Statute § 766.304

[5] Florida Statute § 766.31