Birth Related Neurological Injuries May be Subject to State Agency Determination

Birth Related Neurological Injuries May be Subject to State Agency DeterminationInjuries caused by medical malpractice can be devastating. That can be said for many types of injuries, but the difference is that it is rare to have a “minor” injury as a result of a medical malpractice, whereas, many falls or car accidents do thankfully result in injuries that are less severe.

Injuries to Newborns

The extent of damages sustained when there is an injury that is a result of medical malpractice can be even more extensive when the injury is caused to a newborn baby. That is because the yearly care that may be needed for things like ongoing medical treatment, prescriptions, or in-home nursing care, as well as loss of income is multiplied by the child’s entire life expectancy.

In other words, a 45-year-old man who is catastrophically injured may have 15 years of working years lost to the injury, and 30 years of life expectancy to consider for future medical expenses when calculating yearly damages. But a newborn has all 40+ years of working life, loss of income capacity and potential earnings, and 72-75 total life expectancy years to consider, when considering damages.

This is compounded by the delicate process of childbirth. It was not so long ago that a large percentage of children (and women giving birth) died in childbirth or were born with severe disabilities. Expertise, recognition, and technology have lowered those incident rates, but childbirth remains a delicate medical process with a lot of risk attached to it.

Consider both of those factors (high risk and high potential damages), and you start to understand why Florida developed the Neurological Injury Compensation Association (NICA) in 1988. This administration, which is really just a state agency, is responsible for administering and paying claims for certain types of birth related injuries.

When NICA has Jurisdiction

NICA pays claims regardless of fault, so it is not totally proper to say that it covers only “medical malpractice” claims that result in birth related injuries. NICA maintains a fund that it uses to pay claims that are made for injures sustained at childbirth, although claimants are often not paid at 100% of their damages.

Only certain claims are eligible for payment from NICA, but it is important to know which ones are and are not. That is because claims that fall under NICA cannot be brought in court like a normal claim. They must be brought before an administrative law judge, in a quasi-legal proceeding, that provides limited rights to claimants.

In order to fall under NICA’s purview there are a number of requirements, but the main ones are that:

  • The injury must be neurological and sustained during the childbirth process, due to oxygen deprivation or injury;
  • The resulting impairment must be substantial, either mentally or physically
  • The child must have been born in a hospital and born alive
  • The injury cannot be the result of genetics
  • The doctors and hospital must be participating NICA health care providers, and patients must consent to using them

If a case does not meet those requirements, the victim can still file an action for medical malpractice as they normally would in a court of law. But if it does, and the victim tries to file a standard medical malpractice claim, there is a good chance the defendant will inform the court and have the case transferred or dismissed to NICA’s jurisdiction.

If a case is brought or transferred to NICA’s jurisdiction, and it turns out later that the case did not meet one of the requirements for NICA, the victim can still file or re-commence the action for malpractice brought in court.

Determining Whether NICA has Jurisdiction is Complex

Determining whether a claim falls under NICA can be a complex medical inquiry. For example, a “neurological” injury is not necessarily a brain injury because brain injuries can be caused by injuries that are not neurological.

In other words, an injury is neurological usually when it involves the brain or the spinal cord itself. A botched medical procedure that results in hemorrhaging in the brain, and thus, brain injury, would not qualify, because that would be a non-neurological injury that caused injury to the brain.

Timing is sensitive, as well. NICA only handles injuries sustained during birth. Thus, injuries sustained in utero, or which occur even just a few hours after childbirth, would not qualify. Improper handling or treatment of a newborn even right after childbirth would not qualify, as that injury would be caused by medical treatment given after, and unrelated to, the child birth process itself.

Importantly, the symptoms may manifest after the child birth, so long as the injury itself occurred during childbirth. However, any claim under NICA must be brought before the child turns five.

The child also must be severely and permanently disabled, both mentally and physically. Determining the extent of either impairment to a newborn can be tricky and subjective. In many cases, damage can be shown objectively on scans or exams, but the child may have no observable dysfunction on subjective testing.

NICA is a Mixed Bag

NICA can be a mixed blessing for victims. On the one hand, it provides a pool of funds for those who may be injured during child birth, without having to go through a lengthy, complex medical malpractice case, and without having to prove anybody did anything wrong.

On the other hand, it can also serve as a restriction on compensability, limiting what claimants can recover, and taking a case out of the hands of a judge and jury. Either way it is vital to understand whether the claim will be subject to NICA or not.

If you or a loved one have been injured as a result of medical malpractice claims, statutory restrictions and time restrictions may apply. Contact an attorney at Brill & Rinaldi for a free consultation about your medical malpractice case.