In 1988 Florida created a no-fault compensation system for severe birth injury claims through Florida’s Birth-Related Neurological Injury Act (NICA), § 766.301, Fla. Stat., et seq. (1998). In an article the Journal of Health Politics, Policy, and Law published in 2000, David M. Studdert and his coauthors described the system as “the most significant experiment with compensation for medical injury yet undertaken in the United States.” See also: Jason A. Robin, Lessons from New Zealand: The “No-Fault” Alternative To Medical Malpractice, 21 Annals Health L. Advance Directive 193 (Spring, 2012); Gil Siegal, Michelle M. Mello, David M. Studdert, Adjudicating Severe Birth Injury Claims in Florida and Virginia: The Experience of a Landmark Experiment in Personal Injury Compensation, 34 Am. J.L. & Med. 493 (2008); Vidmar, Lee et al, Uncovering the “Invisible” Profile of Medical Malpractice Litigation: Insights from Florida, 54 DePaul L. Rev. 315 (Winter, 2005); Sandy Martin, NICA-Florida Birth-Related Neurological Injury Compensation Act: Four Reasons Why This Malpractice Reform Must Be Eliminated, 26 Nova L. Rev. 609 (Winter, 2002); David M. Studdert, Troyen A. Brennan, Toward a Workable Model of “No-Fault” Compensation for Medical Injury in the United States, 27 Am. J.L. & Med. 225 (2001).
Under NICA, if an Administrative Law Judge (ALJ) determines the infant’s injury is compensable, the parents file a claim with the Division of Administrative Hearings (DOAH) to receive compensation from the Florida Birth–Related Neurological Injury Association (the Association), which was established to provide no-fault compensation to claimants meeting the statutory requirements of NICA. The statute’s maximum award is $100,000 in addition to attorney’s fees and future medical care costs. NICA mandates compensation from the Association as the exclusive remedy for injuries found to be compensable. The statute grants immunity to anyone directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs. NICA’s Notice Provision requires participating physicians and hospitals with participating physicians to give patients notice that the doctors and/or hospitals participate in the NICA plan so the patients are aware they may be waiving their right to civil suit in the event of a birth-related neurological injury. A party who is required to give notice under NICA’s Notice Provision and fails to do so waives that party’s right to assert the exclusivity of remedies in NICA’s Immunity Provision.
NICA, however, has never met its goal of reducing the number of “bad baby” medical malpractice claims in Florida. Research published in the Studdert article showed that NICA compensated a significantly lower than expected number of claims. The authors’ investigation revealed that the annual frequency of “bad baby” tort claims that received payments of $250,000 or more did not undergo a statistically significant change after NICA’s implementation and claims for a wide range of birth-related injuries, including some apparently compensable under NICA, continued to be litigated in the tort system. The authors compared the NICA data to the state medical malpractice claims and found that one in every six families who were denied relief by NICA between 1989 and 1996 brought a medical malpractice claim for the same injury and 83 percent of double claims were successful in tort despite having been rejected by NICA. The average amount paid to plaintiffs was $403,833, and three received awards of $1 million or greater. The authors explained that the claimants’ usual practice was to file a medical malpractice claim initially, redirect their efforts to recovery in NICA while the tort claim was pending, and then resume the malpractice suit once the NICA claim had been dismissed. The authors concluded that NICA operates more as an alternate than a substitute system of compensation for birth-related injuries. The authors hypothesized that NICA may actually serve an additive function in compensating medical injuries in Florida. Specifically, the porous boundary between tort and no-fault may permit a “separating” effect whereby the NICA beneficiaries consist largely of infants whose injuries were determined to be ineligible for compensation under the negligence standard, together with a small number of claimants who did not escape NICA exclusivity because they were ignorant of their options, too risk-averse, or barred from doing so. While proponents of medical malpractice alternatives often cite the potential for the removal of fault-based determinations to improve the doctor-patient relationship and enhance efforts to track, monitor, and address the incidence of medical injury, the authors found that NICA’s experience suggests that antagonisms may persist in a replacement system that is unable to foreclose tort options authoritatively. The authors proposed a number of structural reforms that Florida’s legislature might implement to help NICA meet its goal of reducing the number of “bad baby” tort claims.
Twenty-seven years after NICA’s initial enactment, in an issue of first impression, the Third District Court of Appeal of Florida issued an interesting decision with regard to whether an entity that is neither a hospital nor a physician participating in the Florida Birth–Related Neurological Injury Association may invoke immunity from suit under NICA when its employees are participating doctors who have waived their personal NICA immunity by failing to comply with NICA’s Notice Provision. In the case, University of Miami v. Ruiz ex rel. Ruiz, 2015 WL 543399 (Fla.App. 3 Dist., 2015) (not designated for publication), the parents of a boy who suffered a serious brain injury caused by oxygen deprivation during the course of labor and delivery sued the medical school that employed two doctors who provided obstetrical services to the boy’s mother during the birth. The medical school filed a motion for summary judgment arguing that it was entitled to immunity from suit under NICA. The medical school also argued that because it was not a participating hospital or doctor, it was not required to give notice under NICA and should therefore be immune from suit. The Circuit Court for Miami–Dade County denied the medical school’s motion.
The appellate court reversed in part and affirmed in part. Specifically, the appellate court reversed the trial court’s denial of summary judgment as to the portion of the claims alleging direct liability for medical malpractice, and affirmed the trial court’s denial of summary judgment as to the portion of the malpractice claims based on the medical school’s vicarious liability for its employees. The court held that an entity that is neither a hospital nor a physician participating in the NICA plan may invoke NICA’s immunity from suit when its employees were participating doctors who have waived their personal NICA immunity by failing to comply with NICA’s Notice Provision when the allegations of the complaint indicated that the entity was directly involved in the medical care provided during or immediately after labor and delivery. However, NICA immunity did not apply to allegations based on the entities’ vicarious liability for the medical malpractice of their employees.
In a footnote, the court explained a simple solution to the medical school’s problem: the medical school could have provided notice on behalf of its doctors. The court noted that subsequently the medical school has begun providing notice of NICA participation on behalf of its physicians so that they will not waive their immunity and subject the medical school to vicarious liability for its doctors’ medical negligence.
With its decision in Ruiz the Third District Court of Appeals clarified the procedure for navigating NICA immunity questions. To the extent this leaves open the structural deficiencies that make NICA serve an additive function in compensating medical injuries in Florida, Florida’s legislature could consider implementing structural reforms to help NICA meet its goal of reducing the number of “bad baby” tort claims.
By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.
For more details, see the Scalpel Weekly News, February 23, 2015.
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See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability.