First, I am deeply sorry if your child was injured or died and that you are going through this awful experience. If your child was injured or killed through due to medical negligence, you and your child deserve justice, but in Florida, the form of that justice may vary. The Florida Legislature has created a no-fault compensation system that most OB/GYNs, hospitals, and other medical professionals pay into to compensate families whose children were injured during birth and meet certain criteria.
If your child sustained a “Birth-related neurological injury,” you may need to file an administrative claim with NICA (The Florida Birth Related Neurological Injury Compensation Association) to seek compensation, as a civil lawsuit for medical negligence will likely be barred. A Birth-related neurological injury is defined by statute as: (1) an injury to the brain or spinal cord, (2) of a live infant weighing at least 2,500 grams (5.5 pounds) at birth for single gestation (or in the case of multiple gestation at least 2,000 grams (4.4 pounds)), (3) caused by oxygen deprivation or mechanical injury, (4) occurring in the course of labor, delivery, or resuscitation in the immediate post delivery period in a hospital, and (5) which renders the infant permanently and substantially mentally and physically impaired.
If your child meets each of the foregoing criteria, and the medical provider that delivered your child is a NICA participant, you will likely not be able to file a lawsuit for any medical negligence that caused or contributed to causing your child’s injuries. Rather, you will have to file an administrative claim to obtain NICA benefits, which benefits can include a $100,000 payment from NICA, medical expenses, custodial care, transportation and home accommodations, and other reasonable and necessary expenses incurred to take care of your child for duration of your child’s life.
On the other hand, if any one of foregoing criteria is not met, then you may be able to bring a civil lawsuit for medical negligence. For instance, if your child weighed less than 2,500 grams at birth or the injury to your child occurred prior to labor or after the immediate post delivery period, then your child would not meet all of the NICA criteria and NICA would not bar a civil lawsuit for medical negligence.
An advantage of NICA is that it is a no-fault system, which means you can file a claim and obtain benefits regardless of whether your child’s neurological injury was caused by medical negligence. A disadvantage of NICA is that the benefits that you are able to obtain for your child and for yourself through the NICA program are generally considered to be more limited than the damages that are available in a civil lawsuit for medical negligence.
Whether you are consider filing a NICA claim or lawsuit for medical negligence, you should contact the experienced attorneys at McBreen & Nowak, P.A. There is no reason to file or handle a NICA claim on your own. NICA is required by statute to pay your attorneys’ fees incurred in filing a petition for NICA benefits if it is determined that your child is eligible (i.e. meets the criteria set forth above). Likewise, it is never a good idea to attempt to handle a medical negligence claim on your own as the issues involved are far too complex for someone that is not an experienced medical malpractice attorney to handle.
If you have questions about whether you have a NICA claim or whether you have a medical negligence claim for the brain or spinal cord injuries suffered by your child, call the experienced attorneys at McBreen & Nowak, P.A. at 813-284-4024. We can help you through this very difficult time and these difficult issues.