Navigating NICA from

a Defense Perspective

GABRIELLE OSBORNE, ESQ. & CARISSA BRUMBY, ESQ.

BEYTIN, MCLAUGHLIN, MCLAUGHLIN, O’HARA, KINMAN & BOCCHINO, P.A.

What is NICA?

The Florida Birth-Related Neurological Injury Compensation Association (“NICA” or “the Plan”)

• No-fault system

• Designed by statute to cover a particular catastrophic injury

• An administrative program that provides full benefits

• Parties to litigation must first exhaust their administrative remedies

• Result of a perceived insurance crisis

• “It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited classof catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. Thisplan shall apply only to birth-related neurological injuries.” See Fla. Stat. § 766.301.

Benefits Provided by NICA

• If Upon determining that a claim is compensable and that appropriate and timelyNICA notice has been provided, an Administrative Law Judge makes an awardproviding compensation relative to the injury. See Fla. Stat. § 766.31. An awardcan include the following:

• Actual Expenses for medically necessary and reasonable medical expenses,including but not limited to, costs associated with routine follow-up; hospitaladmissions; rehabilitation/therapy; drugs; equipment; travel for medical care; andcustodial care and services.

• Periodic Payments (or a lump sum) of an award to the parents or legal guardians ofthe infant who sustained a birth-related neurological injury, which award shall notexceed $100,000.

• Death benefit for the infant in the amount of $10,000.

• Reasonable expenses incurred in connection with the filing of the Petition for NICABenefits, including reasonable attorney’s fees.

Exclusiveness of Remedies

The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies ofsuch infant, her or his personal representative, parents, dependents,and next of kin, at common law or otherwise, against any person orentity directly involved with the labor, delivery, or immediatepostdelivery resuscitation during which such injury occurs, arising out ofor related to a medical negligence claim with respect to such injury;except that a civil action shall not be foreclosed where there is clearand convincing evidence of bad faith or malicious purpose or willfuland wanton disregard of human rights, safety, or property, provided thatsuch suit is filed prior to and in lieu of payment of an award under ss.766.301-766.316. Such suit shall be filed before the award of the divisionbecomes conclusive and binding as provided for in s. 766.311.” See Fla.Stat. § 766.303. Immunity from suit versus liability = Certiorari

Exceptions to Exclusivity of

Remedy

• When one party fails to give notice:

• The Petitioner has the ability to elect their remedy.

• “The claimant can either (1) accept NICA remedies and forgo any civil suit against any other

person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person

or entity who failed to give notice and forgo any remedies under NICA.”

• When does the Petitioner decide:

• “The Andersons need not stop to weigh the proverbial bird in their hands before they release it

to pursue multiple birds in the bush.” Anderson v. Helen Ellis Mem'l Hosp. Found., Inc., 66 So. 3d

1095, 1098 (Fla. 2d DCA 2011).

• Direct and Indirect liability: We therefore hold that UM cannot claim NICA immunity from vicariousliability based on the alleged negligence of its doctors who waived their right to invoke NICA's

Immunity Provision by failing to provide the statutorily-required notice of NICA participation. Univ. of

Miami v. Ruiz ex rel. Ruiz, 164 So. 3d 758, 768 (Fla. 3d DCA 2015).

Exceptions to the Exclusivity Of

Remedy

• The Willful and Wanton Exception:

• Excludes or bars a simple negligence action, but not a claim that warrants punitive damages

• Plaintiff takes on a higher burden of proof/ clear and convincing evidence

• Fla. Birth-Related Neurological Injury Comp. Ass'n v. Jimenez, 278 So. 3d 864, 866 (Fla. 3d DCA2019)

• (1) Compensability, (2) Notice, and (3) Award

• Must make the election before payment and can do so before the ALJ determines the award

• Concurrence in case talks about high stakes gamble

• Motion to Appoint a Guardian

To Intervene or Not to Intervene?

• The Petitioners are required to include the names and addresses of anyphysician providing obstetrical services who was present at the birth,and the hospital where the birth occurred in their Petition for Benefits.See Fla. Stat. § 766.305(1)(c).

• Upon the Petitioners furnishing the Petition for Benefits to the Division ofAdministrative Hearings, the Division is required to serve NICA and mailcopies of the Petition for Benefits (by registered or certified mail, to anyphysician, health care provider, and hospital named in the Petition. SeeFla. Stat. § 766.305(2).

• Any physician, health care provider and/or hospital named in thePetition can then move to intervene in the NICA matter.

Motions to Abate for a NICA

Determination

• No civil action may be brought until the determination has been made under 766.309, Florida Statutes, bythe Administrative Law Judge, which includes:

• Whether the infant has suffered a birth-related neurological injury;

• Whether the at-issue medical care and treatment was rendered by a participating physician in the course oflabor, delivery or resuscitation in the immediate post-delivery period in a hospital;

• How much compensation, if any is awardable; and

• Whether the NICA Notice requirements were satisfied.

• The administrative law judge has exclusive jurisdiction to determine whether a claim filed under NICA iscompensable. Fla. Stat. § 766.304.

• Any issue raising the immunity of a health provider, including the issue of whether the health providersatisfied the notice requirements of the Plan is an issue to be decided by the administrative law judge asone which relates to the question of whether the claim is compensable under the Plan. See O’Leary, M.D.,et al. v. Florida Birth-Related Neurological Injury Compensation Association, et al., 757 So. 2d 624 (Fla. 5thDCA 2000).

Compensability – Is this Injury a

Birth-Related Neurological Injury?

Injury to the brain or spinal cord of a live infant weighing at least

2,500 grams for a singles gestation or, in the case of a multiple

gestation, a live infant weight at least 2,000 grams at birth causedby oxygen deprivation or mechanical injury occurring in the course

of labor, delivery or resuscitation in the immediate post-delivery

period in a hospital, which renders the infant permanently and

substantially mentally and physically impaired. This definition shall

apply to live births only and shall not include disability or death

caused by genetic or congenital abnormality. See Fla. Stat. §

766.302(2).

Compensability - Cont.

Bennett v. St. Vincent’s Med. Ctr., 71 So. 3d 828, 837 (Fla. 2011) -finding that a birth-related neurological injury has four main

components:

(1) an injury to the brain or spinal cord;

(2) which is caused by oxygen deprivation or mechanical injury;

(3) during labor, delivery or resuscitation in the immediate post-

delivery period; and

(4) which renders the infant permanently and substantially impaired.

NICA Notice

Each hospital with a participating physician on its staff and each participatingphysician, other than residents, assistant residents, and interns deemed to beparticipating physicians under s. 766.314(4)(c), under the Florida Birth-RelatedNeurological Injury Compensation Plan shall provide notice to the obstetricalpatients as to the limited no-fault alternative for birth-related neurologicalinjuries. Such notice shall be provided on forms furnished by the associationand shall include a clear and concise explanation of a patient's rights andlimitations under the plan. The hospital or the participating physician mayelect to have the patient sign a form acknowledging receipt of the noticeform. Signature of the patient acknowledging receipt of the notice form raisesa rebuttable presumption that the notice requirements of this section havebeen met. Notice need not be given to a patient when the patient has anemergency medical condition as defined in s. 395.002(8)(b) or when notice isnot practicable. See Fla. Stat. § 766.316.

Participating Physicians and

Hospitals

• Each hospital with a participating physician on its staff and each participating physician, other thanresidents, assistant residents, and interns deemed to be participating physicians under Section766.314(4)(c), Florida Statutes, under the Florida Birth-Related Neurological Injury Compensation Plan shallprovide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurologicalinjuries. See Fla. Stat. § 766.316.

• Participating Physicians:

• Be licensed to practice medicine in the State of Florida;

• Practice obstetrics or perform obstetrical services on a full-time or part-time basis;

• Pay, or be exempted from paying, the required assessments;

• Pay the annual fee; and

• Provide the requisite NICA Notice.

• See Fla. Stat. § 766.302(7).

• Visit the website for The Florida Birth-Related Neurological Injury Compensation Association Plan athttps://www.nica.com for a list of participating and non-participating Ob-Gyns in the State of Florida.

Notice is Severable Amongst

Defendants

• Section 766.316, Florida Statutes, requires both the Hospital with

participating physicians on its staff and the physicians, themselves,

to provide a patient with the requisite NICA Notice.

• As such, NICA Notice is severable as to defendant liability. See Fla.

Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin.

Hearings, 29 So. 3d 992, 998 (Fla. 2010).

Written Verification of Notice

• Each hospital with a participating physician on its staff and each participating physician, otherthan residents, assistant residents, and interns deemed to be participating physicians under s.766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shallprovide notice to the obstetrical patients as to the limited no-fault alternative for birth-relatedneurological injuries. Such notice shall be provided on forms furnished by the association andshall include a clear and concise explanation of a patient's rights and limitations under the plan.The hospital or the participating physician may elect to have the patient sign a formacknowledging receipt of the notice form. Signature of the patient acknowledging receipt of thenotice form raises a rebuttable presumption that the notice requirements of this section havebeen met. Notice need not be given to a patient when the patient has an emergency medicalcondition as defined in s. 395.002(8)(b) or when notice is not practicable.

• “Peace of Mind for an Unexpected Problem”

• Statutory construction: See Dianderas v. Fla. Birth Related Neurological Injury Comp. Ass'n, 973So. 2d 523, 527 (Fla. 5th DCA 2007).

Timing of Notice

• The very first time the plaintiff/petitioner manifests an intent to deliver

with that provider and this is construed liberally.

• Plaintiff “argues that the physicians had a reasonable opportunity

and were required to provide notice to Mrs. Ruiz during her pre-

registration on July 22, 1998 and during the three weeks after pre-

registration leading up to her arrival at the hospital in active labor

on August 13, 1998. We agree.” Univ. of Miami v. Ruiz, 916 So. 2d

865, 869 (Fla. 5th DCA 2005).

Timing of Notice - Cont.

• The formation of the provider-obstetrical patient relationship is what triggers the obligation to furnishthe notice. The determination of when this relationship commences is a question of fact. Once therelationship commences, because the statute is silent on the time period within which notice mustbe furnished, under well-established principles of statutory construction, the law implies that thenotice must be given within a reasonable time. This determination depends upon thecircumstances, but a central consideration should be whether the patient received the notice insufficient time to make a meaningful choice of whether to select another provider prior to delivery,which is a primary purpose of the notice requirement.

• Thus the establishment of the patient-provider relationship well before delivery triggers theobligation to furnish the patient with notice within a reasonable time. Id. at 620. Under thesecircumstances, the notice requirement is not excused by a subsequent emergency. Id.

• Tarpon Springs Hosp. Found., Inc. v. Anderson, 34 So. 3d 742, 753 (Fla. 2d DCA 2010)

• No earlier pregnancy

• Should always be given at pre-registration

Exceptions to Notice –

Emergency Care

• Florida Law provides that notice need not be given to a patient when the patient has anemergency medical condition as defined in Section 395.002(8)(b) or when notice is notpracticable. See Fla. Stat. § 766.316.

• Pursuant to Section 395.002(8)(b), Florida Statutes, an Emergency Medical Condition withrespect to a pregnant woman means the following:

• That there is inadequate time to effect safe transfer to another hospital prior to delivery;

• That a transfer may pose a threat to the health and safety of the patient or fetus; or

• That there is evidence of the onset and persistence of uterine contractions or rupture of themembranes.

• NICA notice must be given within a reasonable time after the commencement of theprovider-obstetrical patient relationship, and the failure to do so is not excused bysubsequent emergency. See Weeks v. Florida Birth-Related Neurological, etc., et al., 977 So.2d 616 (Fla. 5th DCA 2008).