Health Law

NCIA Ruling Stands in Way of Medical Malpractice Suit

An appeals court ruling that happened earlier this month may greatly broaden the number of brain injuries that can be covered by a 'no fault' insurance fund for birth-related injuries in the future.

In its ruling the court claimed neurological injuries such as cerebral palsy that 'manifest at a later date', can also be compensated by the fund. The fund, which is being referred to as the Florida Birth-Related Neurological Injury Compensation Association, or NICA, is reportedly being paid for by doctors and hospitals. Since the ruling was announced many, including, James Gustafson, are asking for clarification. Gustafson, is the attorney for Robert and Tammy Bennett, who filed a cerebral palsy lawsuit on their daughter Tristan's behalf. Tristan was born with cerebral palsy due to an injury she suffered during delivery.

According to the Bennett's and reports the administrative judge said they would not be covered for their daughter's injuries. The court further explained that the presumption given to plaintiffs is that medical malpractice claims covered under NICA should also be applied to doctors and hospitals that serve as the defendants in these cases. The defendants in this case are St. Vincent's Medical Center, Inc., William H. Long, M.D. And North Florida Obstetrics and Gynecology, P.A.

What is he NCIA?

NICA was formed by the Florida Legislature in 1988 with two main goals in mind: it was hoped to lower the costs of medical malpractice insurance for those who deliver babies. It was also meant to provide compensation, on a no-fault basis, for limited class major injuries, often those ending in death.

The NICA has been set up to give lifetime benefits for hospital, medical, rehabilitation, therapy, training and custodial care for children affected by cerebral palsy and other neurological disorders. Cases that go through the NCIA system are not compensable through traditional litigation.

In the case of Tristan Bennett, the little girl experienced oxygen deprivation during birth before suffering from pulmonary bleeding in the in-care nursery. She was later diagnosed with a neurological injury as well as cerebral palsy.

The Division of Administrative Hearings judge ruled that the injury is not eligible to be covered under NICA because her disabilities most likely didn't occur until a week later while she was in the nursery. The court records show also served as a decision maker to the judge seeing as the St. Vincent's Medical Center, Dr. Long and North Florida Ob-Gyn argued that since Tristan met all the prerequisites for a NICA injury under their care, they should receive the same compensability options as Tristan's parents. 

However, the Bennett's and their attorneys refuse to settle for anything less than they, and their now terminally disabled child, deserve.

Full post as published by Cerebral Palsy Law Blog on September 23, 2009 (boomark / email).