What to Understand About NICA if Your Child is Suffering Neurological Birth Injuries

Parents can become justifiably overwhelmed when they learn that their child is suffering brain damage or other neurological problems because of injuries that occurred at the time of birth. Trying to imagine what the future will be like and how the child’s needs will affect the family can seem like too much to bear.

When parents in Florida learn about NICA—the Neurological Injury Compensation Association—it can seem like they’ve found the perfect solution to meet their needs in the future. However, there are some critical limitations that parents need to be aware of before making any commitments.

At Searcy Denney Tallahassee, we’ve been helping families of children with cerebral palsy and other birth injuries for decades, and we know that every child’s situation is unique. If you contact us for a free consultation, we can review the specific facts involved and discuss what may be best for your child. In the meantime, here are some general factors to keep in mind about NICA.

Why NICA Was Founded

Florida lawmakers referred to it as a “medical malpractice crisis. By the mid-1980s, the malpractice insurance costs for obstetricians in Florida were 400% higher than in other parts of the U.S. There was fear that no doctor would agree to practice obstetrics in the state or that obstetricians would refuse to treat high-risk patients.

So, in 1988, the Florida Legislature established the Birth-Related Neurological Injury Compensation Association to reduce the number of lawsuits filed against obstetricians for malpractice. In many ways, it is similar to the workers’ compensation program because it is a “no-fault alternative to medical malpractice lawsuits.”

How NICA Operates

When a child is found to be eligible for NICA and the family is admitted to the program, the family receives a “parent award” of compensation. The program assigns a case manager who is supposed to help the family receive reimbursement for expenses that are “medically necessary and reasonable.” In addition, families can receive a housing benefit, transportation benefit, and mental health services to help cover the costs associated with raising a child with neurological injuries.

In exchange for receiving these benefits, families lose the right to seek compensation for birth injuries through a medical malpractice claim, no matter how badly the doctor screwed up or how severely the child is injured. The outcome of a successful medical malpractice claim usually provides far more resources than the NICA program. So, this program provides some measure of certainty for families, but they lose the right to seek justice and full compensation when serious negligence has occurred.

Eligibility for NICA Benefits

The compensation plan provided through NICA is available to children who have suffered injuries to the brain or spinal cord resulting from oxygen deprivation or a mechanical injury that occurred during labor and delivery or immediately afterward. The definition of children who qualify is set forth in Section 766.302(2) of the Florida Statutes but there are also eligibility requirements as well.

To be eligible, a child must:

• Have been born in a hospital in Florida
• Have received obstetrical services from a practitioner who participates in the NICA program
• Have weighed at least 2,500 grams at birth (approximately 5 ½ pounds -the threshold is lower for multiple births)
• Not be suffering from a condition caused by a genetic or congenital abnormality
• Have a brain or spinal cord injury caused by oxygen deprivation or mechanical injury
• Have an injury that occurred during labor, delivery, or resuscitation immediately after delivery
• Have an injury that causes substantial and permanent mental and physical impairment

In other words, the child must have suffered from injuries that could have been caused by a medical error for which parents would be able to file a malpractice lawsuit.

A parent or other party must file for benefits through the NICA program before the child’s fifth birthday. Approval for benefits is not automatic. It can take considerable effort to get approved. Often, program administrators will determine that an injury does not meet the standards necessary to qualify.

Malpractice Lawsuits

When a provider does not participate, or a child’s injuries do not qualify, or if a healthcare provider failed to provide notice about the program, parents can work with an attorney to seek compensation through a medical malpractice claim. The outcome of the proceedings could provide substantially more resources to meet the child’s and the family’s needs.

Damages can be recovered for factors such as:

• The child’s pain and suffering
• Loss of enjoyment of life and missed future opportunities
• Lost earning capacity for the future
• The varied costs of a lifetime of care

When a child has profound long-term needs because of a birth injury, the benefits provided through NICA are simply inadequate. Families who have participated in the program have frequently been dissatisfied with the services provided and the effort required to obtain them. 

A state audit of the program found that it lacked an adequate process for determining whether a treatment was medically necessary. There are horror stories of children treated with disrespect and denied basic equipment or services. Before applying for benefits, parents should consider consulting an attorney who handles birth injury cases to review the range of options available for recovery.

Talk to the Birth Injury Attorneys at Searcy Denney Tallahassee to Find Out What May Be Possible in Your Situation

Trying to provide for the future needs of a child with neurological birth injuries is a daunting task, regardless of the approach you take. Acquiring as much information as possible before making decisions can help set you on the most effective course forward.

At Searcy Denney Tallahassee, we understand the challenges faced by families affected by birth injuries, and we are ready to fight for full compensation in situations where an injury was caused by medical malpractice. To discuss the options available in your situation, we invite you to call us at 888-549-7011 or contact us online to schedule a free, confidential consultation.