A series of reports by investigative journalists at ProPublica and the Miami Herald shines a spotlight on what can go horribly wrong when parents are stripped of their right to sue when their child is catastrophically injured at birth due to medical negligence.
“Birth Rights: Investigating Florida’s NICA Program,” takes a deep dive into how a program intended to lower the cost of medical malpractice insurance for obstetricians, while providing children who are severely disabled from birth injuries with monetary compensation and “medically necessary” healthcare, has failed to provide, in many cases, the care and support they need.
While many states have flirted with some form of tort reform, in 1988 Florida went all in when it came to babies injured at birth. That year, legislators enacted a law that took away parents’ rights to pursue medical malpractice lawsuits, which often end in multimillion-dollar verdicts and settlements that fund a lifetime of medical care, therapies, equipment, in-home nursing care, medications and other necessary expenses.
Instead, the law provides parents, whose children meet certain criteria for neurological injury claims related to birth, with a one-time payment of $250,000 (until recently it was $100,000) and channels them to a no-fault program that, in theory, is supposed to pay their medical bills along with whatever is needed to support their care and quality of life. The program, overseen by Florida’s Birth-Related Neurological Injury Compensation Association, also called NICA, is funded through assessments paid by doctors and hospitals. In many cases, parents who were stripped of their right to sue were required to turn to Medicaid and private insurers first before NICA would pay, according to the investigative reports.
From the start, NICA may have been a solution in search of a non-existent problem. The justification for NICA was that obstetrician-gynecologists were fleeing Florida over exorbitant medical malpractice insurance premiums. However, per the investigative reports, the number of OB-GYNs in Florida actually grew from 546 in 1975 to 911 in 1983 to 1,047 in 1987, the year before NICA was adopted. That’s a 92 percent increase during a time when the Sunshine State’s population grew by only 70 percent. The most recent tally of OB-GYNs in Florida was conducted in 2020 and placed the number at about 2,000, according to the investigative reports.
But beyond its dubious necessity, NICA has failed to live up to its promise of taking care of brain-injured children, according to parents whose children are in the program.
Parents interviewed by the investigative journalists shared stories of how they have been placed at the mercy of a messy bureaucracy that is indifferent to their needs (if not outright hostile or suspicious), that penny-pinches at every turn, all the while rejecting and slow-walking coverage and benefits.
Among the horror stories told:
- An 11-year-old girl who previously had enjoyed taking long wheelchair strolls around her neighborhood and even trick-or-treating became a prisoner in her home when NICA administrators refused to replace a wheelchair that she outgrew and a modified van that had become inoperable. Instead, NICA paid for an ambulance service to take the child to her doctor appointments, which became her sole contact with the outside world. As the stretcher that was used to transport her was too big to fit into the doctor’s office elevator, the doctor would examine the child in the lobby or in a storage room. When the mother complained to NICA about the lack of privacy, she was told to find a doctor who would make house calls. Ultimately, she found a doctor whose office had wider elevators.
- The same mom saw her electric bills skyrocket from about $100 per month to $500 when her daughter required more power-hungry medical equipment. When the mom fell $2,099 into arrears and the electric company threatened to shut off the power, NICA paid the unpaid tab, but required the mom to pay the program back in twice-monthly $50 installments. In an email to the investigative reporters, NICA characterized the payment as a “no-interest loan” that was a “goodwill gesture beyond the regular support provided to the family.” NICA caseworkers offered the mom $25 per month for future power bills.
- A mom who didn’t want her daughter to spend her entire life attached to a feeding tube asked NICA to pay for a new therapy that used electrical stimulation of the palate and throat muscles. NICA said “no,” and the mom, undeterred, took the child to Budapest for the treatment. It was successful, and the child could now swallow water from a bottle, as well small pieces of banana, mango and peaches. Following the treatment, the child also had fewer fevers, a stronger cough reflex and less drooling and wheezing. Yet, the mom had to engage in a three-year legal battle against NICA to obtain reimbursement for the treatment and travel expenses. The total bill was $11,058. The fight cost NICA $80,000 in fees and costs for the family’s lawyers, which a court ordered it to pay, and an additional $44,000 for its own lawyers.
- Another family has been locked in a 23-year battle with NICA that so far includes three appeals to the state’s Division of Administrative Hearings, a class-action lawsuit and two trips to the First District Court of Appeal in Tallahassee. NICA twice hired a private investigator (at a cost of $10,387) to tail the family for nine days, apparently because it did not believe that their boy’s medical condition justified the family’s requests. Those requests included a wheelchair, a therapy designed to improve muscle tone in the boy’s arm, and compensation for their caregiving hours, which is required by law. Among other minutia of the family’s life, the private investigator uncovered that they shopped at Target, went to the boy’s therapy appointment, ate at Chuck E. Cheese and Wendy’s, bought dinner at a Burger King drive-thru, walked their two dogs, and that the child was able to dry himself with a blue towel at a hotel pool.
- When Hurricane Irma struck in 2017, one boy’s family asked NICA to pay for a hotel room because the generator the program had supplied could not power air conditioning, and the boy was having heat-induced seizures that endangered his life. NICA said “no,” stating that it had already reimbursed for the generator.
In a shocking development, a state audit conducted amidst the fallout of the ProPublica and Miami Herald investigation found that NICA case managers and a case manager supervisor often relied on Google to research and determine whether requests were “medically necessary,” rather than consulting with qualified medical specialists.
Even the smallest of expenses did not escape NICA’s tight fist, according to the investigative reports. When a father requested a blender to puree fresh fruits, vegetables and meat for his 5-year-old son’s feeding tube, NICA retorted that he should use baby food instead. Another family requested a TV and VCR so that their 3-year-old girl — who was enduring kidney stones and compression fractures in addition to her catastrophic birth injuries — could watch educational videos in bed. NICA denied the claim. When her father appealed, he was grilled at a deposition by NICA’s lawyer, who wanted his sworn testimony that no one else would watch the TV. Even with the sworn testimony, NICA still declined to reimburse the $500 cost. NICA also refused to cover the full cost of a $1,314 computer designed to help a non-verbal child speak.
One-Way Frugality
But NICA’s frugality apparently only runs in one direction. According to another audit report also released in the wake of the ProPublica and Miami Herald investigation, NICA is flush with almost $1.5 billion in assets. While it denied therapies and wheelchairs to brain-injured children, NICA spent nearly $800 on holiday luncheons over the past two years for its personnel. While parents traveling with children to out-of-town doctor appointments are allotted only $6 for breakfast, NICA, in violation of state spending laws, paid $158 per person for a breakfast buffet and all-day non-alcoholic drink service for a board meeting that was attended by 12 people.
The audit also found that from 2016 to the present, NICA failed to collect more than $14.4 million in delinquent assessments from doctors. Reminder: This is the same program that begrudgingly paid $2,099 in arrears on an electric bill that spiked when a child’s medical equipment required massive power, but demanded that her cash-strapped mom pay back the money in twice-monthly $50 installments.
Moreover, OB-GYNs reap significant financial benefits from NICA. Obstetricians pay $5,000 per year for coverage under the program. That amount has not increased over the program’s 33 years and would be nearly $12,000 in today’s dollars, as pointed out by the investigative reports. (All other licensed doctors in Florida pay $250 per year toward NICA, and hospitals pay $50 per live birth.) Also, while many NICA families live on the financial edge, NICA boasts that the program has reduced medical malpractice insurance premiums for Florida OB-GYNs by between $62,000 and $88,000 per year.
The Impact of Public Shaming
Since NICA was publicly shamed by the investigative journalists, lawmakers have attempted to address some of its inadequacies. On June 22, 2021, Florida Gov. Ron DeSantis signed into law legislation that provides reforms, including:
- An increase in a one-time payment to participants from $100,000 to $250,000;
- An increase in benefits for death expenses from $10,000 to $50,000;
- A NICA parent and an advocate for disabled children will finally have a voice on the board of directors. Previously, the board had consisted of the chief operating officer of Florida’s largest malpractice insurer, obstetricians who participated in the program, a hospital administrator, and other stakeholders who ostensibly would have an interest in blocking reform;
- An increase in the lifetime housing assistance and home modification benefit from $30,000 to $100,000;
- Money for wheelchair-accessible vans and a “reliable method of transportation” for the life of the brain-injured child;
- A code of ethics for administrators and board members; and
- An appeal process at the state’s Division of Administrative Hearings for families to dispute NICA denials.
After the law passed, all five members of NICA’s board of directors resigned and have since been replaced. The new board chair, who formerly served as director of Florida’s Agency for Persons with Disabilities, and who represents children with special needs on the board, has vowed to transform the program.
Also, NICA’s executive director, who is not a doctor, but oversaw the program for nearly two decades, abruptly resigned in the wake of the investigative reports.
Mark W. Tanner, a co-managing shareholder and medical malpractice lawyer at Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig LLP, said that while he is pleased that some help is on the way for NICA participants, the program is nothing short of a 33-year lesson on the tragic impact of tort reform on birth-injured children. Sadly, NICA isn’t the only way that state lawmakers have sought to eliminate any possibility of meaningful recovery for young victims of medical malpractice, Tanner said.
A few states have “hard caps” on economic damages in medical malpractice cases, meaning that economic recovery is limited regardless of the projected lifetime cost of a child’s medical care. Also, 23 states cap noneconomic damages in medical malpractice cases, according to the Center for Justice & Democracy at New York Law School. This means that compensation for losses that do not have a set dollar amount (such as pain and suffering) is also capped.
As birth-injury cases are notoriously complex and expensive to litigate, damage caps, in some circumstances, inflict grave harm upon birth-injured children by making lawsuits economically unfeasible, Tanner said. He also pointed out that when victims of medical negligence at birth essentially have the courthouse door slammed in their face because of state tort reform laws, entire families suffer. Indeed, NICA parents interviewed by the investigative journalists reported that they had given up jobs and careers to care for their disabled children. One mom shared that she became dependent upon food stamps and cash assistance. Her other children missed Thanksgiving dinners and church Easter egg hunts, and could not play sports, as they sacrificed for their sister.
Tanner offered the following observation:
“In any discussion of caps on damages, the most fundamental principle to understand is that such measures only protect wrongdoers — persons who have been proven to have been negligent and whose negligence has inflicted catastrophic harm on an innocent child — and they do so at the expense of these innocent victims. Such measures turn any notion of justice and fairness on its head. Instead, the focus should be on the prevention of such tragedies, and the traditional tort system plays a valuable role in incentivizing patient safety while also compensating those whose lives have been forever damaged.”
What Should I Do If My Child Has Been Injured at Birth?
Birth-injury cases are a distinct legal practice area that requires extensive medical and legal knowledge, significant trial experience and substantial financial resources on the part of a law firm to go head-to-head against doctors, hospitals, nurses and other healthcare professionals who for obvious reasons are not eager to acknowledge that they made a serious mistake. To protect your child’s legal rights, Tanner recommends contacting an attorney experienced in these highly complex cases as soon as possible, as witnesses’ memories often fade and valuable evidence can potentially “disappear” with the passage of time.
The Birth and Neonatal Injury Practice Group at Feldman Shepherd is led by two of the nation’s most well-respected trial lawyers — Carol Nelson Shepherd and Daniel S. Weinstock — and includes a former emergency room physician and two registered nurses, all of whom are now practicing attorneys.
The team has a proven history of achieving record-breaking multimillion dollar verdicts and settlements throughout the United States that provide for injured children’s lifelong medical needs and developmental support. Notable results include a $78.5 million verdict in a Philadelphia cerebral palsy case, a $30 million verdict in a Georgia case where a baby suffered a severe hypoxic ischemic brain injury, a $20 million settlement for a child who suffered kernicterus and cerebral palsy, and a $16 million settlement in a cerebral palsy case that presented a tragic example of the second-class care that poorer residents of Philadelphia received under a program to supply physician coverage to “underserved” areas of the city.
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If your child has been injured and you would like to speak to a Feldman Shepherd attorney, please contact us.