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Nicoletti Walker Law Group March 2, 2016

Many people do not realize that if they experience a birth-related neurological injury that results in the need for lifelong treatment in Florida, there is often a remedy available to them through the state’s Birth-Related Neurological Injury Act (NICA). In addition, if doctors or hospitals participate in the no-fault plan, patients must be alerted immediately, and if they are not, the hospital facility can be held vicariously liable for the physician’s failure to notify.

This issue came to light recently when the Florida Supreme Court declined the request from the University of Miami—the facility that housed the maternity center where a birth injury occurred—to review a dispute previously decided by the appeals court, which ruled against the university. This birth injury took place in 1998, and the ruling followed 17 years later.

Florida Birth-Related Neurological Injury Compensation Plan

The purpose of the Florida Birth-Related Neurological Injury Compensation Plan is to provide compensation, regardless of fault, for birth-related neurological injury claims that occur after January 1, 1989. Typically these children have suffered a severe injury to the brain or spinal cord during their birth in a hospital as a result of being deprived of oxygen due to a mechanical injury during labor. As a result, they suffer from permanent physical and mental impairments. Typically, the plan provides for a remedy in the form of a $100,000 payment to the family, as well as any legal costs associated with filing the claim and a $10,000 death benefit for the infant, if applicable. The child is also guaranteed lifelong care.

Although the remedies granted by the plan typically block anyone associated with the neurological injury (including the infant, their representatives, parents, dependents, next of kin, etc.) from bringing a negligence claim with respect to the injury (in other words, doctors and hospitals are often entitled to immunity under the law), the important aspect of the appeals court decision was that a court can still find negligence if the relevant physician(s) fail to inform an injured child’s parents about the fund, thus assigning vicarious liability for the physician’s failure to the hospital that employs them and where the injury took place. In making its decision, the court decided that it is crucial for patients to be alerted immediately if their doctor or hospital participates in the plan if/when their infant has been injured during birth. If a physician fails to provide the requisite notice, they waive their immunity under the law, and the hospital can be held vicariously liable for their negligent actions.

Representation for Victims of Brain Injuries in Clearwater, Florida

Serious injuries often leave a family with lifelong repercussions, particularly when it is due to the negligence of someone delivering a child. That child can end up with permanent disabilities that affect their life and the lives of their loved ones, in addition to the all of the many medical and rehabilitative costs. If you or someone you love has been through this, contact the office of Clearwater attorney Mike Walker for a free consultation. Attorney Walker will work tirelessly to ensure that justice is done.