NICA is shorthand for a Florida program known as the Birth-Related Neurological Injury Compensation Association. NICA is invoked in Florida when doctors deliver catastrophically brain injured babies who will require a lifetime of medical care – often the result of medical malpractice in which doctors delay delivery of a baby too long and profoundly deprive the baby of oxygen in the mother’s womb during labor. Ostensibly, NICA is framed as a program designed to support needy parents saddled with a lifetime of critical care for their late-delivered, brain-damaged children, who often need motorized wheelchairs, ventilators, feeding tubes and a host of other medical interventions just to survive. However, the primary design and implementation of the NICA program is actually to protect OB-GYNS from huge malpractice bills by stripping families of their right to sue in the event of a birth gone terribly wrong.
In exchange for taking away a family’s civil justice rights to sue, NICA provides a one-time payment of $150,000 and a promise to cover the lifetime medical expenses of a disabled child. While that may seem like an OK deal at first blush, consider that malpractice verdicts and settlements for birth trauma cases routinely total millions, if not tens of millions of dollars. And when one understands that caring for a child with cerebral palsy and profound brain damage brings with it a lifetime of agonizing physical, mental and emotional labor for child, parent and sibling caregivers alike, $150,000 seems like a slap in the face. Then there is the issue of the “lifetime care” payments. As has been extensively reported, what NICA actually brings to parents is a bureaucratic nightmare that’s anything but caring or supportive.
Sadly, for many Florida residents, they only learn of NICA’s existence after and because their baby suffered catastrophic brain damage due to oxygen deprivation during delivery. These families face an overwhelming tsunami of emotions and a wholesale change to the life they thought they’d have, only to discover that NICA ensures these parents can never learn what went wrong, what could have been done to prevent the tragedy or how they could help ensure the same thing doesn’t happen to another family. NICA ensures that these families will never get justice for their injured or deceased loved one.
If you think NICA is a uniquely Florida problem, think again. Virginia has adopted the NICA program too. And you better believe that other states, particularly those with right-leaning legislatures, will be looking to enact similar rights-depriving programs that could disastrously impact you. While Florida has recently enacted some changes to the program and made some nebulous promises to “do better,” it is too little too late for the countless number of families that have been harmed by the NICA program. And color me skeptical that Florida’s changes to its NICA program will make any tangible difference to the lives of those upon which it has been forced. After all, NICA’s director himself has written that the NICA program was “not here or funded to ‘promote the best interest’ of the children.”. The $1.5 Billion in assets the NICA program has amassed, which is six times more investment income than it spent on disabled children, certainly attests to that.
If you are pregnant, it is imperative that you read and review any and all hospital paperwork you’re asked to sign to make sure you are not, in any way, giving up your rights to file a lawsuit in the event that your child is brain damaged or otherwise seriously injured during delivery. In the meantime, if you believe you or your child or loved one has been injured during birth as a result of medical malpractice, you should contact an experienced law firm like Bordas & Bordas right away to explore your rights.