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Attorney Henry E. Valenzuela

Why is a Florida birth injury fund facing a lawsuit?

On Behalf of | Jul 29, 2022 | Medical Malpractice

The Florida-Birth-Related Neurological Injury Compensation Association faces a federal lawsuit involving its status as the payer of last resort in birth injury cases. The Association tried to get the lawsuit dismissed based on sovereign immunity, but the 11th U.S. Circuit Court of Appeals denied the motion.

The outcome of the case could impact who pays for neurological injuries suffered at birth.

What is the Florida Birth-Related Neurological Injury Compensation Association?

The Florida legislature created NICA in 1988 due to concerns about the cost of medical malpractice insurance for obstetricians. NICA provides no-fault coverage for medical care of children who are born with specific neurological injuries. The program seeks to reduce lawsuits against doctors for these birth-related injuries.

Why is NICA facing a lawsuit?

A whistleblower filed suit against NICA in 2019 alleging that the Association improperly acted as a payer of last resort. This action potentially resulted in Medicaid paying the costs for some birth injuries before NICA.

The federal False Claims Act establishes Medicaid as the payer of last resort. The whistleblower contends that NICA is violating this act.

How could the case affect who pays for birth injuries?

If the court determines that NICA is improperly classifying itself as the payer of last resort, the Association may have to pay for covered injuries before Medicaid and possibly other insurance programs.

Why is NICA not immune?

The court determined that NICA is not entitled to sovereign immunity because the state does not substantially control the operation of the Association which functions similarly to medical malpractice insurance.

If your child has a neurological injury related to birth, you may qualify for the NICA program, though you are not required to participate.

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