How Florida Deals With Traumatic Brain Injuries During Childbirth

Medical malpractice always imposes hardship on its victims. But when physician or hospital negligence causes a traumatic brain injury to a child, the consequences are even more devastating. Such injuries often lead to a lifetime of costly medical care and exact an emotional toll on the parents.

To deal with such cases, the Florida legislature created the Florida Birth-Related Neurological Injury Compensation Association (NICA) in 1998. The idea behind NICA is that it provides “no-fault” benefits to “pay for the care of infants born with certain neurological injuries.” But these no-fault benefits come with important strings attached: Parents who receive compensation under NICA cannot sue a negligent physician or hospital for malpractice.

University of Miami Faces Malpractice Lawsuit Over Physicians’ Negligence

In order to take advantage of NICA, however, the medical provider must normally provide notice to parents that it is a participant in the plan. And in cases where multiple medical provider are involved, each individual physician or hospital must provide notice. Any health care provider who fails to give this notice is deemed to have waived their immunity from malpractice lawsuits under NICA.

For example, the Florida Supreme Court declined to review a lower court’s decision regarding a hospital’s immunity from lawsuit under NICA. The victim in this case was a child born at a Miami hospital with serious brain injuries “caused by oxygen deprivation during the course of labor and delivery.” The parents sued both the hospital’s owner and the University of Miami, which employed the two physicians who oversaw the child’s delivery.

An administrative law judge determined that NICA applied to the parents’ claim against the hospital, which gave the parents the required notice, and awarded the maximum plan benefit of $100,000. But the judge also ruled that the two physicians failed to give notice, meaning the university, as their employer, could still be sued for malpractice. The university appealed, arguing they were entitled to immunity from lawsuit.

Last year, the Florida Fifth District Court of Appeal clarified the law on this issue. The university is not directly covered by NICA, which only applies to physicians and hospitals. This means the hospital is actually immune from lawsuit, and it does not have to give notice in order to enjoy such immunity.

That said, the Fifth District said the parents could still sue the university based on its physicians’ failure to give proper notice under NICA. This is because an employer is “vicariously liable” for the negligent acts of its employees. So while the university is immune for any “direct involvement” it had in the child’s delivery and brain injury, the university “cannot invoke NICA immunity for its indirect involvement.”

The university asked the Florida Supreme Court to review the Fifth District’s decision, but the court declined to hear the appeal.

Need Help from a Florida Medical Malpractice Lawyer

If you or your child has suffered serious injuries during delivery, it is essential to seek advice from an experienced Clearwater medical malpractice attorney about your rights under Florida law. Contact the Law Office Paul B. Genet, P.A., at (727) 538-8865 anytime if you need to speak with an attorney.

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