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Ruling May Expand Cases Covered by Newborn Brain Injury Fund

An appeals court ruling this month may significantly broaden the number of brain injuries covered by a “no fault” insurance fund for birth-related injuries.

Attorneys for the fund, which is paid for by doctors and hospitals and known as the Florida Birth-Related Neurological Injury Compensation Association, or NICA, plan this week to ask the First District Court of Appeal in Tallahassee to clarify a 2-1 ruling issued August 21.

Also asking for clarification is Tallahassee attorney James Gustafson, the attorney for Robert and Tammy Bennett, who filed the underlying lawsuit on behalf of their daughter Tristan, who is permanently disabled following an injury during infancy.

The family filed a lawsuit, but the case was sent for review to the Division of Administrative Hearings to determine if the injury should be covered by NICA. The administrative judge said no, but in the ruling this month the DCA overturned that ruling and said the family should be compensated by the no-fault NICA system, rather than in the courts.

But the court went further, and said essentially, that the presumption provided to plaintiffs that medical malpractice claims should be covered under NICA should also be applied to doctors and hospitals that are defendants in such cases. In the case of the Bennetts' daughter, the defendants are St. Vincent's Medical Center, Inc., William H. Long, M.D. And North Florida Obstetrics and Gynecology, P.A.

Wilbur Brewton, the attorney who represents NICA, called it a “slight rewrite of the statute.”

“This is not the end. We’re going to do everything we can to challenge the opinion,” said Gustafson, a partner with the Tallahassee office of Searcy Denney Scarola Barnhart, who represents the family, which like NICA, believes the case shouldn't go into the NICA system, but be handled in a standard medical malpractice case.

In its ruling, the court also said that neurological injuries that “manifest at a later date” also can be compensated by the fund which relies on annual assessments from doctors and hospitals as well as membership dues from obstetricians.

While NICA Executive Director Kenney Shipley said the ruling could broaden the number of compensable cases it shouldn’t increase the assessment that doctors or hospital pay into the fund. Each doctor in the state pays $250, whether they are an obstetrician or a plastic surgeon. Participating obstetricians pay an additional $4750 annually for coverage. Hospitals pay $50 per live birth.

“It’s a very, very narrow range of injures that are covered that even with that expansion I don’t see how that by itself would create an undue burden,” said NICA Executive Director Kenney Shipley.

NICA was created by the Florida Legislature in 1988 with two goals in mind: lowering the costs of medical malpractice insurance for those who deliver babies and providing compensation, on a no-fault basis, for a limited class of catastrophic injuries including death. NICA provides liftetime benefits for hospital, medical, rehabilitation, therapy, training and custodial care throughout the life of the child. NICA cases are not compensable through traditional litigation.

The program was funded through an initial $20 million appropriation as well as assessments on physicians and hospitals, and participation fees. If the fund becomes insolvent, an insurance company could face an assessment of up to 0.25 percent of its prior year net direct premium written.

In the underlying case, Robert and Tammy Bennett's daughter, Tristan, suffered oxygen deprivation before being delivered via cesarean section on September 26, 2001. One week later while in the special care nursery, the infant experienced pulmonary bleeding and was later diagnosed with a neurological injury, cerebral palsy. She is permanently disabled.

The Division of Administrative Hearings judge ruled that the injury was not covered by NICA because it most likely didn’t occur until a week later while in the nursery, court records show. St. Vincent’s Medical Center, Dr. Long and North Florida Ob-Gyn argued that because the child met the prerequisites for a NICA injury they should be extended the same presumptive compensability option under the law as the parents of the disabled child.

The administrative law judge denied the request.

But the appeals court ruled that applying the presumption of compensability in the Jacksonville case “best serves the Legislature’s intent,” of reducing medical malpractice tort claims. “On the other hand, dispensing with the presumption at the request of a claimant would undermine that intent.”

Judge Charles Kahn issued a dissenting opinion noting that because NICA precludes traditional legal remedies – going through the courts in a medical malpractice case - the law should be “strictly construed.”
Kahn said it’s clear the presumption of compensability is provided in the law to aid a claimant who wants to file a NICA claim and seek compensation outside what can be a costly legal system.

Kahn wrote the presumption “may not be applied against a party” for whom it was not intended.

The majority DCA opinion also notes that nothing in the NICA law prevents a child from being covered through the no-fault fund if a neurological injury caused at the time of birth becomes apparent sometime later.

Writing for the majority, Judge WilliamVan Nortwick said NICA can pay for injuries that show up later if the “oxygen deprivation or mechanical injury” occurred during “labor, delivery, or resuscitation in the immediate post delivery period.”

Additionally, the opinion notes, recent case law construes “immediate post-delivery period in a hospital” to include an extended period of days when a baby is delivered with a life-threatening condition and requires close supervision

“This is an important opinion and one of a few recent ones that expands the babies covered by the NICA program,” said Orlando attorney Scott McMiIllen, noting that if the court is willing to extend NICA coverage to an infant a week after birth it could be expanded to include a “prenatal event days weeks even months earlier.”

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