Birth Related Neurological Injuries and the Florida Birth-Related Neurological Injury Compensation Plan

In 1988, the Florida Legislature enacted the Florida Birth-Related Neurological Injury Compensation Act. Under the Act, the Florida Birth-Related Neurological Compensation Association was established. The association is the state administrative agency which administers the Florida Birth Related Neurological Injury Compensation Plan. Often, the program is referred to as the NICA fund, or NICA program. Under NICA funding, a limited class of birth-related neurological injuries qualify for compensation. Essentially, when an infant sustains a birth-related neurological injury, parents may file a claim with the agency for NICA funding, instead of commencing a medical malpractice lawsuit against the physician, hospital or other healthcare provider. By doing so, a parent will be deemed to have given up their common law rights and remedies, and the participating physician, hospital, or other healthcare provider is considered immune from liability. This system, which is designed upon a no-fault basis, was created by the legislature as an effort to reduce the costs of medical malpractice insurance for obstetricians. However, in order for parents to receive compensation for their child’s injuries, the physician, hospital or other healthcare provider must be a NICA program participant.

Filing a claim can be complex matter and whether or not a child is covered will be determined by an Administrative Law Judge (ALJ). The ALJ is required to consider whether the injury claimed is a birth-related neurological injury, if the physician was a participating physician under NICA and was delivering obstetric services in the course of labor, delivery, or resuscitation in the immediate post delivery period in the hospital; and the amount of the award which is compensable. Our Fort Lauderdale medical malpractice attorneys handle these types of cases and are here to guide parents through this intricate procedure.

Recently, the Supreme Court of Florida held in Florida Birth-Related Neurological Injury Compensation Association v. St. Vincent’s Medical Center, Inc., et.al. , that in order for a birth-related neurological injury to occur, the injury must be caused by a deprivation of oxygen which renders the infant permanently and substantially impaired, must occur during labor, delivery or resuscitation in the immediate post delivery period. Since Plaintiff Bennetts and the NICA fund petitioned the court for discretionary review, the Court granted review.

Plaintiffs Robert and Tammy Bennett claimed that their daughter, Tristan Bennett, sustained permanent and substantial brain damage as a result of the alleged medical malpractice of William H. Long, M.D., and St. Vincent’s Medical Center, Inc., in addition to other medical care providers. On September 21, 2001, Tammy Bennett was involved in a car accident and was transported to a nearby hospital where fetal testing was conducted. After the results of the testing, Tammy Bennett was transported by helicopter to the St. Vincent’s Medical Center where she declined into kidney failure. Subsequently, Dr. Long, her obstetrician, performed a cesarean section. According to the hospital records, after being born, Tristan “did not cry, had minimal respiratory effort, and required resuscitation with bulb, free flow oxygen, mechanical suction, and bag and mask ambu.”

Thereafter, Tristan was transferred to the special care nursery for medical treatment due to “moderate respiratory distress and metabolic acidosis.” Further, the hospital records indicated that the infant responded well to treatment, resuscitation efforts ceased, became stabilized and was sent to the hospital’s regular infant nursery. However, on October 3, she began to demonstrate signs of seizure activity, neurological decline and “suffered from prolonged and severe acidosis”. On October 5, testing conducted concluded Tristan had suffered permanent and substantial neurological damage. Her parents filed a civil suit against Dr. Long, St. Vincent’s Medical Center, and other defendants. NICA intervened and took the position that the infant’s injuries were not a birth-related neurological injury under the scope of the NICA statue. The circuit court abated the civil suit so that the administrative agency could determine whether or not Tristan injuries qualified for NICA funding. The ALJ ruled that Tristan injuries did not qualify for NICA funding.

At issue during the administrative hearing was the timing of Tristan’s birth. The ALJ ruled that Tristan’s injuries did not qualify under NICA funding because there was a second incident of oxygen depravation which occurred on October 3, 2001 and was not caused during labor, delivery or resuscitation in the immediate post delivery period. The First District reversed the ALJ’s decision and held that under the NICA statutory scheme, the phrase, “immediate post delivery period in a hospital” was to be construed to extend to the time an infant spends time in a hospital for medical treatment for a life threatening condition that requires close supervision. Therefore, according to the court, from the time of Tristan’s delivery until October 3, Tristan suffered oxygen depravation which required her to spend time in a special care nursery at the St. Vincent’s Medical Center. From the court’s perspective, Tristan’s special care nursery time constituted the time for resuscitation in the immediate post delivery period in the hospital for purposes under the NICA plan.

In reviewing this case de novo, the Court stated that NICA statutory interpretation is to be interpreted by its clear and unambiguous meaning, and strictly be construed to involve only those incidents which occurred during the statutory mandated period. The Court held that the First District erred by expanding the statutory meaning to include the time from Tristan’s birth by cesarean section all the way through the events on October 3. The Court reasoned that under NICA statutory scheme, birth-related neurological injuries caused by oxygen depravation, which renders an infant permanent and substantially impaired, must occur during labor, delivery and resuscitation in the immediate post delivery period which does not include any additional expanded period of time unless the resuscitation effort is one which is a continuous and ongoing effort. Additionally, the First District’s statutory interpretation would extend to those situations in which an infant is transferred from a delivery room and the obstetrician relinquishes his or her responsibility of the infant to other healthcare providers. Further, since the healthcare providers ceased resuscitation efforts on Tristan prior to October 3, the Court affirmed the ALJ’s decision and remanded the case to the First District. Also in this case, the Court ruled on the issue of benefit entitlement to the NICA statutory rebuttable presumption of compensation.

If you are a parent and your child was born with a birth-related neurological injury, since every case is different, you should consult with a Fort Lauderdale birth injury attorney who can provide you with legal advice regarding your circumstances.

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