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Payout limits upheld for birth-related brain injuries

In a separate case, Florida physicians are awaiting the state Supreme Court’s ruling on noneconomic damages awarded in medical liability lawsuits.

By Tanya Albert Henry — Posted June 17, 2013

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The Florida Supreme Court upheld a state law that sets a limit on the amount that the parents or legal guardians of an infant with a birth-related neurological injury can receive through a state compensation fund.

The majority of justices said the state’s Birth-Related Neurological Injury Compensation Assn., commonly known as NICA, is constitutional because it pays for a family’s expenses incurred because of the injury and provides a “singular award” of up to $100,000 for the child’s parents or legal guardians. It provides “a reasonable alternate remedy to a parent’s right to access the courts,” justices said.

The fund is available to parents with a child born in a hospital who has an injury caused by oxygen deprivation or a mechanical injury during labor, delivery or resuscitation immediately after delivery. A physician must be present at the delivery.

Payments to two parents vs. one

The parents in the case before the Florida Supreme Court, Samples v. Florida Birth-Related Neurological Injury Compensation Assn., challenged the $100,000 limit established in 1988. The law says parents can receive $100,000 per child regardless of whether they pursue legal action as a single or divorced parent or as a couple. The parents in the case said the limit violated their equal protection under the law and their right to have access to the courts. The couple’s daughter was born with birth-related neurological injures in August 2007.

In their May 16 opinion, the majority of justices disagreed with the Samples’ argument, saying that parents or guardians can seek other court remedies if there was “clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety or property.” They also noted that the limit of $100,000 per claim keeps NICA fiscally sound.

“Any additional payment above the $100,000 authorized by the provision would undeniably have a negative effect on the plan’s actuarial soundness,” the majority opinion said. “Moreover, the actuarial soundness of state programs has been upheld as a legitimate state interest by several courts faced with equal protection claims.”

Lawmakers established NICA, in part, to help families care for injured children without litigation and to stabilize and help make medical liability insurance available to physicians. The ruling allows NICA to continue operating as it has been for 25 years.

An attorney for the Samples said they had hoped to expand the scope of the award that was allowed under the law.

“It does not seem fair that if there are two parents they have to split the amount, and if there is only one parent they get the full $100,000,” said the Sample’s attorney, Scott R. McMillen of the McMillen Law Firm in Orlando, Fla. In cases where there are two parents, “they are each losing their personal damages.”

NICA appellate counsel Wilbur E. Brewton of Brewton Plante in Tallahassee, Fla., said he was pleased that the Florida Supreme Court tackled every issue the case raised and that justices found NICA constitutional.

“NICA is very helpful in maintaining lower medical malpractice insurance rates,” he said. “It also is an important decision for maintaining the continued viability of the fund.”

What this means for tort reform

Florida physicians hope that this court ruling is a good omen for tort reform cases on which the court has yet to issue an opinion.

“Seeing the Supreme Court come out and not strike something down was encouraging,” said Jeffery M. Scott, general counsel of the Florida Medical Assn. Previously, the court had struck down some reforms.

The FMA did not file an amicus brief in the Samples case. However, the FMA joined a number of Florida specialty medical societies, the Florida Hospital Assn. and several hospitals in filing a friend-of-the-court brief asking the Florida Supreme Court to uphold Florida’s 2003 cap on noneconomic damages in the closely watched McCall v. United States of America. In medical liability cases against physicians, the cap on the pain and suffering damages is $500,000 under Florida law. That increases to $1 million in cases of death or if a patient is in a permanent vegetative state because of medical malpractice.

In McCall, Michelle McCall, 20, died from shock and cardiac arrest after labor was induced because she had hypertension and severe preeclampsia. Initially, a total of $2 million in noneconomic damages was awarded to McCall’s surviving parents and newborn son. It was reduced to $1 million in the final judgment because of Florida’s cap. McCall’s parents and son are asking the Florida Supreme Court to find the cap unconstitutional.

The Litigation Center of the American Medical Association and the State Medical Societies filed a separate brief in the case, along with several specialty medical societies and other organizations, including the American Congress of Obstetricians and Gynecologists, the U.S. Chamber of Commerce and the Physician Insurers Assn. of America.

Justices heard oral arguments in 2012. A ruling had not been issued as of this article’s deadline.

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External links

Angela Samples, et al., v. Florida Birth-related Neurological Injury Compensation Assn., Supreme Court of Florida, May 16 (link)

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