Florida's state-sponsored Birth-Related Neurological Injury Compensation Association (NICA) prevents parents from filing lawsuits
against healthcare providers when their baby is born with severe or fatal brain damage from oxygen deprivation during childbirth.
If a birth injury meets NICA criteria, even in cases involving clear medical error, parents only have the choice
of accepting a $100,000 settlement, medical expenses paid throughout the child's life, and a $10,000 funeral benefit if the child dies. Most NICA families sign NICA forms without reading them only to discover they’ve been stripped of their right to pursue justice through the courts after devastating malpractice occurs.
In 2016, Ruth Jacques went into labor at Orlando Health Winnie Palmer Hospital for Women & Babies. Ruth’s medical records say she refused a C-section
offered due to "severe" fetal heart recordings. Conversely, Ruth says her obstetrician didn’t tell her her baby’s life was in danger and she didn’t refuse a C-section. "You better push, or you're going to have a C-section," she said she was told by the doctor. "In my understanding, he is threatening me [with] a C-section if I don't push, not that the situation ... was an emergency."
"Mothers maintain the right to decline a C-section," comments Dr. Nicole Smith, medical director of maternal fetal medicine practice at Brigham and Women's Hospital in Boston, "but it is the provider's responsibility to ensure that they understand the risks and benefits to the extent possible in what is typically a highly stressful situation."
Her obstetrician used a vacuum device to deliver baby Reggie, who was born essentially lifeless and placed on a ventilator. Six days later, Reggie was taken off the ventilator and lived for another two months. If Ruth had had a C-section, Reggie’s brain wouldn’t have been starved of oxygen and he would have lived, Reggie's parents believe. Although the Jacqueses wanted to sue their obstetrician for negligence
, NICA forced them to settle for filing a malpractice complaint with the Health Department. The complaint was dismissed as no violations of the standard of care were found with the option to appeal unavailable. In most states, legal cases can be filed for obgyn malpractice
. An experienced legal team can help parents file suit within the deadline established by the existing statute of limitations.
1,238 NICA claims
1,238 NICA claims have been made in total since its creation in 1988. At least 440 were accepted for coverage, including 143 from parents whose child died before the claim was accepted. “There are practical considerations”, said David Studdert, a Stanford University professor. “Some of those families who were accepted into NICA likely would have gotten nothing had they been allowed to pursue a lawsuit”.
For the Jacqueses, however, NICA compensation will never replace their loss. "That's blood money," Ruth said."It's not going to bring him back." Faced with little option, Ruth files a new complaint with the Department of Health every year on Reggie’s birthday — a symbolic gesture to remind her obstetrician that Reggie lived and that he died.