Welcoming a new child into the family should be an exciting and joyous time. For many families, sadly, it is instead filled with stress, anxiety, and concerns about the future. This occurs when an infant suffers a serious injury during labor or delivery.
Parents often believe that they can file a personal injury claim if their child suffers an injury during the labor and birth process, but that is not always true. In fact, some people are astonished to learn that they have already forfeited their rights, long before their child is even born. This is because the Sunshine State has enacted The Florida Birth-Related Neurological Injury Compensation Association (NICA). Below, our Miami medical malpractice lawyer explains more about this program, and how it hurts families.
What is NICA?
The Florida Legislature created NICA in 1988. The purpose of the program was to reduce the amount of civil claims involving birth injuries. In spite of the fact that birth injuries result in life-long disabilities for children, as well as long-term emotional and financial burdens for parents, legislators still believed that jury awards for birth injuries were too high. NICA was intended to eliminate these civil claims.
As with so many other medical malpractice laws, the theory behind NICA seems valid. Doctors sign up to take part in the system and they pay a fee to do so. If an infant becomes harmed during the birthing process, parents can then receive the compensation they need without going through a time-consuming and costly lawsuit. Unfortunately, NICA is greatly limited and can actually hurt parents more than help them. Perhaps it is for this reason that Florida is the only state that uses such a program.
Qualifying for NICA
First and foremost, very few cases actually qualify for NICA. In order to be eligible, the injury must be to the spinal cord or brain. The injury must have also been caused by mechanical injury or oxygen deprivation during the labor and delivery process. Injuries caused by immediate resuscitation post-delivery also qualify for NICA. The injury must have also resulted in permanent and substantial mental and physical impairment. Due to these strict qualifications, few birth injuries qualify for NICA.
NICA is an Exclusive Remedy
NICA is an exclusive remedy. This means that if your child’s injuries qualify, it is the only way you can obtain compensation. You cannot obtain compensation through NICA and file a medical malpractice claim against the liable doctor or healthcare professional. This likely adds incentive for physicians to take part in the program. Further, if your case meets NICA requirements, you have no choice but to partake in the program and are essentially barred from filing a separate claim.
Damage Caps
The losses sustained by a child and their family after a birth injury are enormous. A child may never be able to obtain gainful employment and they may even require life-long care. Parents may also spend hundreds of thousands of dollars to treat the injury.
Unfortunately, the damages provided by NICA are often just a fraction of the losses a family sustains. Through NICA, parents can only obtain up to $100,000 in damages, even if the losses sustained are far more costly than that. In the worst case scenarios when a birth injury is fatal for an infant, the damages are capped at just $10,000.
NICA also states that the program will provide for all necessary and reasonable expenses associated with the treatment and care for an injured infant. However, there are also limitations placed on these expenses. If you carry health insurance, NICA will only provide compensation for what your insurer does not. You must submit any claim to the Association, and they must approve it.
Additionally, if you have to make renovations to your home to accommodate the child, such as a wheelchair ramp, there are specific requirements regarding how much can be spent on this work. Even if the work will cost more than NICA covers, you will have to pay those expenses out of your own pocket.
Our Medical Malpractice Lawyers in Miami Provide Sound Legal Advice
If your child has suffered a birth injury, it is critical that you speak to a Miami medical malpractice lawyer. At Dolan Dobrinsky Rosenblum Bluestein, our seasoned attorneys can advise on your case and determine the best way for you to obtain the full and fair compensation you and your family deserves. Call us now at (786) 504-7874 or fill out our online form to request a free consultation and to learn more.