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Personal Injury · Wrongful Death · Medical Malpractice

Recovering Damages for Neurological Injuries Sustained in Childbirth – Florida’s Alternative System

The birth of a child is an event that is typically surrounded by feelings of joy and anticipation. Unfortunately, tragic missteps by the attending doctors can lead to neurological damage for the baby and alter the lives of the affected family forever. Filing a medical malpractice lawsuit for a birth-related injury is the avenue most people envision taking in order to receive compensation for the doctors’ negligence. Florida, however, has an alternative system (Florida Birth-Related Neurological Injury Compensation Act (NICA)) to receive compensation for birth-related neurological injuries that does not require a finding of fault, but participation does preclude the ability to file a medical malpractice lawsuit against the physicians directly involved with the injury. One of the requirements of the law is that patients receive immediate notice of a doctor’s or health care facility’s participation in the program in order to retain immunity from civil suits. The Florida Supreme Court recently declined to consider an appellate decision that allowed the University of Miami to face potential vicarious liability for medical malpractice when two of its doctors failed to inform the parents of a baby who suffered neurological injury during birth of their participation in the NICA program. An overview of the law will be provided below so that parents dealing with this situation can learn whether they are eligible to participate and whether the doctors involved followed the proper procedure to shield them from civil liability.

When Immunity from Civil Malpractice Lawsuits Applies

As mentioned above, notice must be provided to all obstetrical patients about a doctor’s participation in this program in order to qualify for immunity from a lawsuit. The notice must be listed on a form that clearly outlines the patients’ rights and limitations under the program. If a patient signs a form acknowledging she received this notice, this signed document acts as a rebuttable presumption the notice requirement was satisfied. If this notice is not provided, the doctors involved with the child’s injury can be sued for medical malpractice. Further, a lawsuit is also permitted if the injured party can show the doctors acted in bad faith, with maliciousness or with willful and wanton disregard of human life. The lawsuit must be filed before accepting an award under the NICA program.

Compensation Awarded under NICA

The purpose of this law is to reduce the malpractice insurance premiums of obstetrical physicians caused by the inherent high-risk nature of this field of medicine. This alternative compensation program makes awards without assigning fault and is intended to cover certain types of catastrophic neurological injuries that require expensive and long-term medical care. The infant must suffer a brain or spinal injury during labor, delivery or resuscitation in post-delivery that renders the infant “permanently and substantially mentally and physically impaired.” If a family is granted an award under the program, they are entitled to receive the following compensation for actual expenses:

  • medical and hospital fees;
  • rehabilitative training;
  • custodial care;
  • medications;
  • special equipment; and
  • related travel.

The award is for the life of the injured baby and can also include a one-time payment to the parents of $100,000, reimbursement of legal fees and costs incurred by filing the claim, and a $10,000 death benefit for the infant.

Talk to a Medical Malpractice Lawyer

Any parent facing serious injury to their child is devastating, and even more so when that child is still a baby. Parents are forced to trust doctors during childbirth, so if something goes horribly wrong, it is hard to accept there is little the parent could have done to prevent the outcome. The Miami law firm of Pita Weber Del Prado represents clients in wide variety of medical malpractice cases and understand the heart wrenching pain that comes from watching your child suffer. Contact us today to schedule a free consultation and find out how we can help.

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