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What is NICA and What Injuries During the Birthing Process Apply?


Your Jacksonville personal injury attorneys here at Edwards & Ragatz assist in birth related fatalities as well. Florida appeals court on Monday rejected a constitutional challenge to the state’s Neurological Injury Compensation Act (NICA), upholding distinctive minimum weight requirements for infants from single and multiple births who suffer brain injuries at birth to qualify for benefits.  Jerra Myrick had filed the underlying administrative claim as a precursor to a medical malpractice suit against Putnam Community Medical Center over her daughter’s birth-related neurological injuries because of a lack of oxygen at birth,  but it was the Palatka-based hospital that brought the challenge on appeal.

The ruling by the 1st District Court of Appeal dealt with the Florida Neurological Injury Compensation Act, which provides benefits to infants who suffer severe neurological injuries. Putnam Community Medical Center, a hospital in Palatka, argued that neurological injuries suffered by Jamyrah Debose should be covered through the no-fault program widely known as NICA. Such coverage would shield the hospital from a potential medical-malpractice lawsuit by the child’s mother, Jerra Myrick. An administrative law judge, however, ruled that the injuries should not be covered by NICA because of part of state law that limits such coverage to infants who weigh at least 2,500 grams when there are single births. If this or something similar happened to you, call the Jacksonville personal injury attorneys at Edwards & Ragatz.

The Debose baby, who suffered injuries from a lack of oxygen to her brain, weighed 2,440 grams at birth. The hospital argued to the appeals court that the law was unconstitutional because it set the 2,500-gram threshold in single births but a lower threshold — 2,000 grams — in cases involving children injured during multiple births, such as the births of twins.

But in a 12-page ruling, a three-judge panel of the appeals court upheld the constitutionality of the law. The court pointed, in part, to a legislative decision in 2004 that rejected moving the weight threshold to 2,000 grams for cases involving single births.

That decision came after a report showed that lowering the threshold would increase costs for the compensation program.
The ruling by judges Scott Makar, Harvey Jay and M. Kemmerly Thomas said “NICA’s weight distinctions withstand constitutional scrutiny because they’re rationally related to maintaining the actuarial soundness of its no fault coverage.”

If a claim falls under the purview of NICA, its resolution is limited in several ways:

  1. The claim will be determined in an administrative court by an administrative law judge (ALJ) rather than a jury.
  2. The value of a claim will be limited to a recovery of $100,000, regardless of the severity of the injuries or future costs for care. The value further will be limited to $10,000 in the event the incident results in death to an infant.

As a result of these significant limitations to what could otherwise be a substantial medical malpractice case, it is important for a filing attorney to ensure that a claim under the NICA plan is the appropriate avenue to recovery for each case. There are at least 12 factors that must be met in order to be properly relegated to NICA compensability. They include the following:

  1. The injury must be a neurological injury;
  2. The injury must have occurred during birth;
  3. The injury must be due to oxygen deprivation or mechanical injury;
  4. The injury must be a substantial mental and physical impairment;
  5. The infant must be born alive;
  6. The birth and alleged injury must occur in a hospital;
  7. The alleged injury cannot be due to a genetic or congenital abnormality;
  8. The infant must weigh 2,500 grams or 2,000 grams in the case of multiple gestations;
  9. The health care providers must be participating physicians and hospitals;
  10. The patient must consent to treatment by NICA health care providers;
  11. The child must be younger than five years old at the time of abatement to NICA; and
  12. There must not be bad faith or malicious purpose or wilful and wanton disregard.

You can read the entire decision here:

If you or a loved one has been injured or died during the birthing process, suffered from any type of malpractice, or personal injury, contact us at Edwards & Ragatz your Jacksonville personal injury attorneys for a free consultation: (800) 366-1609; locally – (904) 467-1323; or through our website

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The Florida Birth-Related Neurological Injury Compensation Association (NICA) was created by the Florida Legislature in 1988. NICA is a statutory organization that manages the Florida Birth Related Neurological Injury Compensation Plan (“Plan”) used to pay for the care of infants born with certain neurological injuries. This Plan is available to eligible families statewide without litigation. By eliminating costly legal proceedings, and through professional management of its disbursements, NICA ensures that birth-injured infants receive the care they need while reducing the financial burden on medical providers and families.

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