The Risk of Neurological Injury during Childbirth
Although it may seem cliché, almost every parent states that the birth of a child is the best day in his/her lifetime. And, it should be a cause for celebration, enjoyment, and pride. However, while most childbirths in this country proceed without a hitch, unfortunately, childbirth always has some risk, and, in some cases, birth injuries can occur. Further, in some cases, these injuries are determined to be preventable error on the part of the medical professionals attending to the birth, and retaining the services of a medical malpractice attorney with experience in birth injuries can be crucial to ensuring that the person or persons responsible for the harm compensates the parents for not only medical costs, but also for the child’s pain and suffering. And, no birth injury is more devastating that neurological injuries, as a Florida child tragically experienced during a botched birth. While, in many cases, a medical malpractice action is the only option available, fortunately, Florida provides an alternative avenue to pursue compensation when the childbirth injury is neurological. A discussion of these two options will follow below.
Negligence is the legal theory used to pursue most medical malpractice matters. Under this legal theory, the plaintiff must prove that the medical professional violated his/her standard of care when treating the patient (in this case, the child). Generally, to prevail in a medical malpractice matter, the plaintiff must prove the following elements:
- That the medical professional was subject to a standard of care common to those in his/her specialty;
- That the medical professional failed in conducting himself/herself according to the standard;
- That the child was injured as a result of the medical professional’s failure; and
- That damages resulting from the injuries can be ascertained, to provide an avenue of relief.
Florida’s Birth Related Neurological Injury Compensation Act
Florida is one of two States that provide an alternative to the traditional route of medical malpractice through negligence – the Birth Related Neurological Injury Compensation Act (NICA). This program, although the compensation provided by its parameters may be substantially less than that which may be recovered in a traditional medical malpractice lawsuit, has, as a benefit, no requirement that the injured child’s family prove that the birth injuries were any person’s fault.
Rather, under a NICA proceeding, the parent must file an administrative claim, which indicates that the child’s injuries occurred during labor, delivery, or the immediate post-delivery resuscitation period. The child’s injuries must precisely fit the definition set forth by the NICA law, and the obstetrician must be a member of NICA. If this is shown, the damages that the parent may recover include expenses for:
- medical care, including hospitalization and rehabilitative care, and travel expenses;
- custodial care;
- medications and any needed special equipment;
- attorneys’ fees; and
- up to $100,000 in additional compensation.
Nevertheless, the NICA program is limited. For instance, the NICA program does not allow damages for pain, mental anguish, disfigurement, the loss of the ability to enjoy life, or the economic loss from the inability to work. Further, the NICA program will not pay for costs covered by the child’s insurance policy, or by any governmental program. Though, in light of the fact that most individuals are either insured or covered by Medicaid, in practical and exclusively financial terms, the NICA program is not the preferred route. However, if proving fault on any one medical professional is difficult (which, by itself, may make the chances of prevailing in a traditional medical malpractice avenue slim), the NICA program can provide at least some potential for compensation.
Seek Legal Advice
If your child suffered an injury during his/her birth, and you believe the injury was preventable, contact the attorneys at Pita Weber & Del Prado as soon as possible. Our experience with medical malpractice issues is extensive, including neurologic injuries suffered by children during birth. We will use this experience to work with you to develop a strategy for pursuing a legal action against the responsible individuals, either through the traditional medical malpractice route or via the NICA program, to get you the most compensation possible. Contact our Miami office today for a free initial consultation.