In the state of Florida, obstetricians have the option of participating in the Florida Birth-Related Neurological Injury Compensation Association (NICA). This was a program started in Florida in 1988, and is used to provide coverage of care for infants born with neurological injuries – including those caused by medical malpractice.
The general idea is that families have a way to obtain compensation without filing a lawsuit against their doctor. The trade-off, however, is that it’s a no-fault program for doctors, and patients essentially forfeit their right to sue for medical malpractice, which would likely result in a higher compensation amount if the patient is successful.
Our Naples birth injury lawyers know there are a host of requirements providers must meet in order to invoke NICA in lieu of a lawsuit, and one of those is providing notice to the patient regarding the physician’s participation in the plan.
In 2008, Florida’s 5th District Court of Appeal held in Weeks v. Florida Birth-Related Neurolgical, et al. that failure to provide such notice within a reasonable amount of time following the establishment of the patient-provider relationship is grounds for the patient to forgo the plan and pursue litigation.
More recently, in N.R. v. Florida Birth-Related Neurological et al., the court cited the Weeks decision in its ruling to remand the case back to the lower court for determination of when the doctor-patient relationship was formed. This was the trigger, the court indicated, for when the doctor was required to provide notice of his participation in NICA.
The idea that a doctor is required to give “reasonable” notice is rooted in the legislative intent to give patients enough time to seek another provider prior to the delivery, if they so choose.
The term “reasonable” is ambiguous, and as an issue of fact, could vary, even when there are similar circumstances. Still, critical in making that determination is when the doctor/patient relationship formed.
The reason this is important is that physicians do no automatically have a duty of care to everyone they meet. In order for this duty to exist, there must be some voluntary agreement between doctor and patient regarding the formation of a professional relationship. It is from that point that the doctor owes a duty of care.
There are some circumstances under which this can vary. For example, if there is an emergency or the patient is not conscious or facing an immediate, life-threatening situation, the doctor may be required to provide care even though there is no such established agreement.
In a birth injury case, particularly one where the child has suffered a brain injury and the doctor participates in NICA, establishing when the doctor/patient relationship was formed is important to determining whether the patient has the right to sue, or whether he or she will be bound by whatever compensation is deemed sufficient by NICA’s standards. Courts will likely decide the latter in cases where doctors provided notice of their NICA participation within a reasonable amount of time in agreeing to treat the patient.
In the recent N.R. case, the appellate panel determined the lower court failed to make the underlying determination of when the relationship was formed, and absent this information, couldn’t fairly decide whether NICA benefits were appropriate. The case was remanded with direction for the court to make this determination before any further proceeding.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
N.R. v. Florida Birth-Related Neurological et al., July 25, 2014, Florida’s 5th District Court of Appeal
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