Florida’s Birth-Related Neurological Injury Compensation Plan (NICA)

In 1988, the Florida legislature and governor enacted massive changes to our system of handling birth-related neurological injuries. But for limited exception, they took away jury trials and gave us a “no-fault” system.

The legislature claimed that this was needed because “[p]hysicians practicing obstetrics are high-risk medical specialists for whom malpractice insurance premiums are very costly, and recent increases in such premiums have been greater for such physicians than for other physicians.” § 766.301(1)(a), Fla. Stat. They made other claims too. “Any birth other than a normal birth frequently leads to a claim against the attending physician; consequently, such physicians are among the physicians most severely affected by current medical malpractice problems.” § 766.301(1)(b), Fla. Stat. “The costs of birth-related neurological injury claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault.” § 766.301(1)(d), Fla. Stat. “The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding.” Id. So, the legislature created a system of “compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” § 766.301(2), Fla. Stat.

Many years later, after citing extensive facts, the Florida Supreme Court concluded that “the Legislature’s determination that ‘the increase in medical malpractice liability insurance rates is forcing physicians to practice medicine without professional liability insurance, to leave Florida, to not perform high-risk procedures, or to retire early from the practice of medicine’ is unsupported.” Estate of McCall v. United States, 134 So. 3d 894, 909 (Fla. 2014) (internal citation omitted). And the increased premiums “did not result from sudden or dramatic increases in medical malpractice settlements or jury verdicts.” Id. at 908 (internal citation omitted). Rather, this “resulted from dramatic increases in the amount of money that the insurance industry put in reserve for claims. Those reserve increases were so big because the insurance industry systematically underreserved [for years] . . . .” Id.

Definition of “Birth Related Neurological Injury”

Under section 766.302, a birth-related neurological injury in an “injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.” The definition only applies to live births and does “not include disability or death caused by genetic or congenital abnormality.” Id.

Exclusive Remedy

The rights and remedies of NICA “exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical negligence claim with respect to such injury.” § 766.303(2) Fla. Stat. But “a civil action shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award [through NICA].” Id. NICA can also be waived based on a failure of the hospital or doctor to provide the required notice. (More on this below.)

Sovereign immunity caps are waived under NICA. And NICA is supposed to be administered in a way that “promotes and protects the health and best interests of children with birth-related neurological injuries.” § 766.303(3) and (4), Fla. Stat.

Under 766.304, an “administrative law judge shall hear and determine all claims filed pursuant to [NICA].” They have “exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable.” §766.304, Fla. Stat. “If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued . . . , no civil action may be brought or continued in violation of the exclusiveness of remedy provisions.” Id. “If it is determined that a claim filed under [NICA] is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available under common law and statutory law.” Id. “The findings of fact and conclusions of law of the administrative law judge shall not be admissible in any subsequent proceeding; however, the sworn testimony of any person and the exhibits introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence.” Id. “An award may not be made or paid under [NICA] if the claimant recovers under a settlement or a final judgment is entered in a civil action.” Id.

NICA Process

To start a NICA claim, a claimant must file a petition containing the following information:

1. The name and address of the legal representative and the basis for her or his representation of the injured infant.
2. The name and address of the injured infant.
3. The name and address of any physician providing obstetrical services who was present at the birth and the name and address of the hospital at which the birth occurred.
4. A description of the disability for which the claim is made.
5. The time and place the injury occurred.
6. A brief statement of the facts and circumstances surrounding the injury and giving rise to the claim.

§ 766.305(1), Fla. Stat.

The claimant must provide “as many copies of the petition as required for service upon the association, any physician and hospital named in the petition, and the Division of Medical Quality Assurance, along with a $15 filing fee payable to the Division of Administrative Hearings.” § 766.305(2), Fla. Stat.

The division is tasked with immediately serving the “association, by service upon the agent designated to accept service on behalf of the association, by registered or certified mail, and shall mail copies of the petition, by registered or certified mail, to any physician, health care provider, and hospital named in the petition, and shall furnish a copy by regular mail to the Division of Medical Quality Assurance and the Agency for Health Care Administration.” Id.

Within ten days of filing the petition, the claimant must provide NICA:

1. All available relevant medical records relating to the birth-related neurological injury and a list identifying any unavailable records known to the claimant and the reasons for the records’ unavailability.
2. Appropriate assessments, evaluations, and prognoses and such other records and documents as are reasonably necessary for the determination of the amount of compensation to be paid to, or on behalf of, the injured infant on account of the birth-related neurological injury.
3. Documentation of expenses and services incurred to date which identifies any payment made for such expenses and services and the payor.
4. Documentation of any applicable private or governmental source of services or reimbursement relative to the impairments.

§ 766.305(3), Fla. Stat. This information remains confidential. Id.

Next, NICA has forty-five days from service of a complete claim to “file a response to the petition and to submit relevant written information relating to the issue of whether the injury alleged is a birth-related neurological injury.” § 766.305(4), Fla. Stat.

If NICA determines the claim is compensable, the assigned administrative law judge must also approve the claim. § 766.305(7), Fla. Stat.

Otherwise, if there is a dispute, the “administrative law judge shall set the date for a hearing no sooner than 60 days and no later than 120 days after [the petition is filed].” § 766.307(1), Fla. Stat. The judge must immediately notify the parties of the time and place of the hearing. Id. And the hearing must be held in the county where the injury occurred, unless the parties and division agree otherwise. Id.

Before the hearing, any party “may, upon application to the administrative law judge setting forth the materiality of the evidence to be given, serve interrogatories or cause the depositions of witnesses residing within or without the state to be taken.” § 766.307(3), Fla. Stat. Costs for these will be considered expenses of the claim. Id. And deposition notices must be given. Id.

The claimant and NICA must be at the hearing. § 766.307(2), Fla. Stat. And after it is over, the administrative law judge must make the following findings, based on the evidence:

1. Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2).
2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.
3. How much compensation, if any, is awardable pursuant to s. 766.31.
4. Whether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s. 766.316 are satisfied. The administrative law judge has the exclusive jurisdiction to make these factual determinations.

§ 766.309(1), Fla. Stat.

If the judge “determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at the birth, [they] shall enter an order and shall cause a copy of such order to be sent immediately to the parties by registered or certified mail.” § 766.309(2), Fla. Stat. As part of being a “participating physician,” doctors are bound “for all purposes by the finding of the administrative law judge or any appeal therefrom with respect to whether such injury is a birth-related neurological injury.” § 766.309(3), Fla. Stat.

The hearing can also be bifurcated, first handling compensability, and then, if applicable, addressing compensation. § 766.309(4), Fla. Stat. The judge may issue a final order on compensability and notice, which is subject to appeal, before entering an order on the amount of compensation.” Id.

If a judge determines “that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth,” they must next determine an amount to compensate for:

Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. At a minimum, compensation must be provided for the following actual expenses:

1. A total annual benefit of up to $10,000 for immediate family members who reside with the infant for psychotherapeutic services obtained from providers licensed under chapter 490 or chapter 491.
2. For the life of the child, providing parents or legal guardians with a reliable method of transportation for the care of the child or reimbursing the cost of upgrading an existing vehicle to accommodate the child’s needs when it becomes medically necessary for wheelchair transportation. The mode of transportation must take into account the special accommodations required for the specific child. The plan may not limit such transportation assistance based on the child’s age or weight. The plan must replace any vans purchased by the plan every 7 years or 150,000 miles, whichever comes first.
3. Housing assistance of up to $100,000 for the life of the child, including home construction and modification costs.

§ 766.31(1)(a), Fla. Stat.

These expenses are “limited to reasonable charges prevailing in the same community for similar treatment of injured persons when [that] treatment is paid for by the injured person.” § 766.31(1)(c), Fla. Stat. “The parents or legal guardians receiving benefits under the plan may file a petition with the Division of Administrative Hearings to dispute the amount of actual expenses reimbursed or a denial of reimbursement.” Id.

The following expenses are not compensable:

1. Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law.
2. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity.
3. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law.
4. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program.

§ 766.31(1)(b), Fla. Stat.

Beyond expenses, the judge’s ruling must include “[p]eriodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award may not exceed [$250,000 as of 2021].” § 766.31(1)(d)(1)(a), Fla. Stat. This was originally limited to $100,000 but “[b]eginning on January 1, 2021, the award may not exceed $250,000, and each January 1 thereafter, the maximum award authorized under this paragraph shall increase by 3 percent.” Id. Despite the initial requirement of periodic payments, the statute also specifies that the judge has discretion to order that this be paid as a lump sum. Id.

If the baby died, parents or legal guardians must also receive a $50,000 “death benefit.” § 766.31(1)(d)(2), Fla. Stat.

As to the costs to bring the NICA claim, claimants are entitled to “[r]easonable expenses incurred in connection with the filing of a claim under [NICA], including reasonable attorney’s fees, which shall be subject to the approval and award of the administrative law judge.” § 766.31(1)(e), Fla. Stat.

For attorney’s fees, the judge must consider:

1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly.
2. The fee customarily charged in the locality for similar legal services.
3. The time limitations imposed by the claimant or the circumstances.
4. The nature and length of the professional relationship with the claimant.
5. The experience, reputation, and ability of the lawyer or lawyers performing services.
6. The contingency or certainty of a fee.

Id.

The law also specifies that if there is a “final determination of compensability, and the claimants accept an award under [NICA], the claimants are not liable for any expenses, including attorney fees, incurred in connection with the [the claim] other than those expenses awarded under [the law].” Id.

Lastly, “[t]he award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.” § 766.31(2), Fla. Stat. “A copy of the award shall be sent immediately by registered or certified mail to each person served with a copy of the petition.” § 766.31(3), Fla. Stat.

Two very important points about NICA:

Under section 766.306, “[t]he statute of limitations with respect to any civil action that may be brought by, or on behalf of, an injured infant allegedly arising out of, or related to, a birth-related neurological injury shall be tolled by the filing of a claim in accordance with [NICA], and the time such claim is pending or is on appeal shall not be computed as part of the period within which such civil action may be brought.”

And most importantly, under section 766.316, “[e]ach hospital with a participating physician on its staff and each participating physician, other than [certain] residents, assistant residents, and interns . . . , under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries.” This notice must be “provided on forms furnished by [NICA] and shall include a clear and concise explanation of a patient’s rights and limitations under the plan.” Id. “The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form.” Id. But, “[n]otice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(8)(b) or when notice is not practicable.” Id.

Otherwise, failure to give this notice can be fatal to NICA and all the limitations that come along with it. According to the Florida Supreme Court, “[c]onsistent with the plain meaning and the purpose of the statute, our holding (i) shields from civil liability those persons or entities that gave proper and timely notice, and (ii) allows a claimant who did not receive proper and timely notice to pursue civil remedies only against the person or entity who failed to provide such notice.” Florida Birth-Related Neurological Injury Comp. Ass’n v. Dep’t of Admin. Hearings, 29 So. 3d 992, 999 (Fla. 2010) (emphasis added).

So, no notice can mean that a family has a choice as to whether to pursue a NICA claim or to seek justice as part of a medical malpractice case. This is an extremely important decision and one that you should not make until you’ve consulted with an extremely experienced medical malpractice attorney.

If you or anyone you know needs a lawyer to seek justice in a medical malpractice case, please call us at 754-400-5150 or contact us online. Let the Law Offices of Evan M. Rosen serve you!