HELP FOR HOSPITALS

by

Wayne M. Alder, Esq.

Melissa E. Black, Esq.

Seiden, Alder & Matthewman, P.A.

 FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ACT

 SUMMARY

           Florida Birth-Related Neurological Injury Compensation Act (“NICA”) was designed by the Florida legislature to put a cap on birth-related neurological injuries for healthcare professionals in the State of Florida.  When an infant sustains a neurological injury during childbirth and the physician and the hospital have pre-enrolled in NICA, the birth family must elect NICA as their exclusive remedy.  This removes the case from the medical malpractice civil framework.  Under NICA, the parents and child are able to recover actual expenses for necessary and reasonable care, one-time cash award not to exceed $100,000, death benefit of the infant up to $10,000 and the reasonable expenses for filing the claim including attorney’s fees.  In order to enroll in NICA, the hospital is required to pay $50 per live birth, and physicians involved must pay an annual fee of $5,000.  There is a provision for the hospital in areas of population in excess of 1.1 million people, whereby the hospital may elect to pay for the physician to insure NICA coverage.

DISCUSSION 

            In 1988, the Florida legislature created the Florida Birth-Related Neurological Injury Compensation Act.  NICA was established to provide compensation, irrespective of fault, for birth-related neurological injury claims.  Coverage under NICA applies to births occurring on or after January 1, 1989.  In conjunction with creating the Act, the legislature designated an entity known as the Florida Birth-Related Neurological Compensation Association (also referred to as NICA).  The purpose of NICA is to successfully administer funds to those families who had elected coverage through the Act.  In addition, NICA is responsible for overall claims administration.  Coverage under NICA is available to eligible families statewide without litigation.   NICA further ensures that birth injured infants receive the care that they need while reducing the financial burden on medical providers and young families.

            The rights and remedies granted by NICA are exclusive. If the infant sustains a neurological injury during childbirth which meets the criteria of  NICA, proper notice is given of the availability of NICA and the physician and hospital participate in NICA,  the family must elect NICA as their exclusive remedy.  Those who have sustained NICA eligible birth-related neurological injuries may not pursue a claim in circuit court for medical malpractice unless their NICA claim is rejected.  However, in situations where there is clear and convincing evidence of impropriety on the part of the care giver including bad faith, malicious purpose or willful and wanton disregard of human rights, safety, or property, a suit may be filed in lieu of payment of an award under NICA.  Furthermore, in the event that the hospital and/or physician pays a settlement to the family prior to the election of NICA, the family may still pursue coverage through NICA.   

            Individuals seeking to file a claim may apply directly to the NICA without having to retain an attorney. Once the appropriate documentation is filed, an Administrative Law Judge will review the claim to determine if NICA coverage applies.  The judge may deny NICA coverage if he/she determines that the evidence doesn’t support a claim for coverage, the health care providers involved do not participate in NICA and/or the health care providers failed to provide notice of their rights under NICA to the expectant parents.  In the event that the Administrative Judge denies NICA coverage, the potential claimants may seek further recourse by filing a medical malpractice claim.                                               

            Broadly, NICA coverage provides for the following: 

            X         Actual expenses for necessary and reasonable care, services, drugs, equipment, facilities and travel excluding expenses that can be compensated by state of federal governments, or by private insurers. 

            X        A one time cash award, not to exceed a $100,000.00, to the infant’s parents or guardians. 

            X        A death benefit for the infant in the amount of $10,000.00.

            X         Reasonable expenses for filing the claim, including attorneys fees. 

            NICA is funded by hospitals, physicians and other health care providers who pay annual assessments.   In order for a claim to reach the exclusive remedy of NICA, all providers of care involved in the birth of the infant must be assessed and contribute to NICA.  As to hospitals, a payment of $50.00 per live birth is required to be paid to the NICA. Physicians involved with the delivery of the infant pay an annual fee of $5,000.00.  Mid-wives pays $2,500 and must be supervised by a physician in order to qualify under NICA.^[1]  In the event a physician or other health care provider chooses not to participate in NICA, then they must pay an assessment of  $250.00 annually.^[2]  If the hospital is located in a county where the population is in excess of 1.1 million as of January 1, 2003, as determined by the Agency For Health Care Administration (AHCA) under the Health Care Responsibility Act, it may elect to pay the fee for the participating physician and certified nurse mid-wife if the hospital first determines that the primary motivating purpose for making such payment is to ensure coverage for the hospital’s patients under NICA.  As stated above, every health care provider who lays hands on the mother and/or infant during the birthing process must participate in NICA in order for it to apply.   

            The statute of limitations for bringing a NICA claim is 5 years from the date of the birth of the infant.  Should a injured infant and family proceed directly to the circuit court in an attempt to bypass NICA, the appropriate motions should be filed so that the case will not proceed pending determination of applicability of NICA  by the Administrative Law Judge.   

STEPS TO SET NICA COVERAGE 

            Again, in order for NICA coverage to apply, the physician, mid-wife and hospital must participate in NICA.  Failure of one of these entities to participate in NICA will render any election for the coverage null and void.  Evidence of participation of NICA should be maintained in the providers’ credentialing file but may be ascertained by contacting NICA directly.  You can get NICA forms by contacting NICA at P.O. Box 14567, Tallahassee, Florida, 32317, telephone 800-398-2129, or accessing their website at   http://www.nica.com. 

            After an event, it first must be determined that the infant suffered a birth-related neurological injury.  NICA coverage only applies to children who are born alive with a birth-related neurological injury.  Birth-related neurological injury means, “an injury to the brain or spinal cord of live infant weighing at least 2500 grams for a single gestation or, in the case of multiple gestation a live infant weighing at least 2000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired”.  This definition applies to live births only and shall not include disability or death caused by genetic or congenital abnormality^[3].  NICA does apply to infants who have died as a result of neurologic compromise, however, the baby must be born alive in order to qualify for NICA. 

            Finally, it is important ensure that proper notice was given of participation in NICA prior to the birth of the infant.  As stated in Florida Statute § 766.316: 

Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under § 766.314(4)(c), the under the Florida Birth-Related Neurological Injury Compensation Association shall provide notice to obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. 

            Notice can be established by both the hospital and physician providing the expectant mother with a form created by NICA titled, “Peace of Mind For An Unexpected Problem.”^[4]  The physician can satisfy the notice requirement during prenatal visits.  The hospital can satisfy the notice requirement during the pre-admission process.  It should be noted that notice does not have to be accomplished if the patient has an emergency medical condition as defined by Florida Statute § 395.002 (9)(b).^[5]   To evidence receipt of the notice, the patient should sign a form acknowledging that they have received the notice form.  Failure of the physician and/or hospital to provide such notice, may result in rejection of a claim for NICA coverage.  In the event that this issue should arise upon election of NICA, the Administrative Law Judge shall review any and all evidence supporting proper notice.   

            If it is confirmed that all health care providers participate in NICA, the injury meets the definition of birth-related neurological injury and proper notice was given, then the family must seek an election for NICA coverage as their exclusive remedy.  In the event that a family attempts to bypass NICA in favor of a medical malpractice lawsuit,  counsel for the hospital and/or doctor should immediately file a Motion to Abate the malpractice claim.  The Circuit Court will then stall the malpractice action and refer the case for NICA consideration to the Administrative Law Judge.  If  the Administrative Law Judge determines that the case meets the requirements of NICA, the family has no alternative but to elect NICA as their exclusive remedy.  If the Administrative Law Judge rejects the claim for NICA, then the case may proceed in the Circuit Court.                                              

CONCLUSION

            In the event of a child suffers a birth-related injury, the physician/mid-wife and hospital  participate in NICA and proper notice was given, the exclusive remedy for compensation is NICA.  Attempts made to bypass election of NICA coverage and proceed with a malpractice action in Circuit Court will be met by aggressive counsel who will have the action stayed pending ruling of NICA eligibility by the Administrative Law Judge.  If the claim is eligible for NICA, the medical malpractice action will be dismissed and the claimants have no other recourse but to take advantage of the program.   

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