Suing a doctor, nurse midwife or hospital on for a child injured during birth in Florida is extremely complicated. In 1988, Florida’s legislature enacted the Florida Birth Related Neurological Injury Compensation Association (NICA) to pay for the enormous medical expenses of infants that sustain certain kinds of neurological trauma during delivery.
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The NICA plan covers medical and financial assistance to qualified families and is intended to eliminate some of the legal costs associated with birth related neurological medical malpractice claims. NICA is supposed to pay for the necessary medical treatment, drugs, equipment, travel and services required by brain injured infants. There is a one-time cash award up to $100,000 that can be paid to the infant’s parents or legal guardians and a death benefit for $10,000.
INVESTIGATING A BIRTH TRAUMA CLAIM
We have investigated many claims on behalf of Florida families who have had a child born with severe brain damage. Proving that a birth related injury is caused by the carelessness of a hospital, doctor, nurse or midwife is a complicated and expensive undertaking which requires an experienced medical malpractice lawyer.
Florida law requires that before any lawsuit can be filed against a health care provider, the claim is properly investigated by the family’s lawyer. In order to comply with the law, we are required to obtain all of the relevant medical records and diagnostic studies and have them reviewed by an expert or experts in each specific area of medicine in question.
Typically in the evaluation of a case of a traumatic birth injury claim at a Miami hospital, our lawyers will first need to obtain all of the mother’s medical records from maternity throughout delivery. We look to determine if the infant’s injury is the result of compression or a mechanical injury that may have deprived the fetus of sufficient oxygen. Perinatal hypoxic ischemic encephalopathy (HIE) is the medical term for this condition and is associated with long-term and devastating medical consequences such as severe seizure disorder, mental retardation and cerebral palsy.
Studies have shown that less than 2% of neonatal deaths and stillborns in the United States are the result of a birth injury. In some cases, birth trauma is unavoidable. But, with proper medical care, high risk cases can be identified early on and additional precautions implemented. Typically high risk factors for birth trauma include: large to date infants, the use of forceps or vacuum, vaginal breech or abnormal traction.
Sadly, many birth trauma cases are unavoidable; but in other cases, they are the result of some preventable negligence on the part of the medical team. However, the lawyers for brain injured babies are not always successful in proving this in court. According to a recent Florida medical malpractice case against a doctor and his professional association, an injured child’s assets may be at risk if his or her claim is rejected by a jury.
WHO PAYS THE COSTS IF A BIRTH TRAUMA LAWSUIT IS LOST?
For example, recently in a case not represented by our firm, Florida’s 5th District Court of Appeal faced an appeal made by Dr. Alejandro Pena and Physicians Associates after they were unsuccessfully sued by the parents of a child born with severe brain damage. After the winning his case in court, the doctor wanted to be reimbursed for costs of his legal defense, as the prevailing party–from the child’s assets.
The trial judge entered a judgment against the parents and the child’s guardianship for $83,794.50. The guardianship then appealed, claiming that Florida’s Legislature enacted §744.301(2) to protect a minor’s assets from the risks associated with personal injury lawsuits filed without first obtaining the guardianship court’s approval.
Fortunately, the Appellate court determined that the medical malpractice case was brought by the parents in their capacity as natural guardians and not on behalf of the legal guardianship that had been created to protect the child’s assets. The court distinguished the role that all parents automatically have to act on behalf of their children versus the legal guardianship that are created to protect the assets of a minor. Had the legal guardianship been a party to the malpractice case and obtained the court’s approval as required by Florida’s statute, there may have been another result. Read the entire opinion here.
Thankfully for this child, his assets will remain protected. If you or anyone you know feels as though their child has been injured as a result of some form of preventable negligence by a South Florida doctor, nurse midwife or hospital; please contact our experienced medical malpractice lawyers today for a free consultation.