Florida NICA and the Virginia birth injury program

What these programs are

Both were set up when birth malpractice insurance was getting hard to buy. Both move a narrow group of severe birth injuries out of the courts.

Here is the structure.

• A narrow, defined category of injury.
• No need to prove that anyone did anything wrong.
• Lifetime cover for certain care costs.
• A defined award to the parents.
• In exchange, the program is usually the only route.

The trade-off runs both ways. A family with a covered injury gets lifetime coverage without proving fault. That is a real benefit where fault would be hard to prove. A family with a strong case gives up the ability to bring it.

The programs are exclusive remedies. The definitions are narrow. So this is one of the areas on this site where an attorney licensed in that state matters most, and early.

Florida NICA

The Florida plan is set out in Chapter 766, Part I of the Florida Statutes. ³ It is run by an association known as NICA. ¹

Who is covered

The statute draws the category narrowly. ³ The elements are these. The injury is to the brain or spinal cord. It was caused by oxygen deprivation or mechanical injury. It happened during labor, delivery, or resuscitation just after birth, in a hospital. The baby is left badly and permanently impaired, in both mind and body.

Read that slowly. Each part narrows it.

• Brain or spinal cord. Not other injuries.
• Loss of oxygen, or physical injury. Not infection. Not genetic conditions.
• During labor, delivery, or the rescue just after birth, in a hospital.
• Impaired in both mind and body, badly and for life. A child with severe physical needs and typical thinking is usually not covered.

The statute also sets rules on birth weight and weeks of pregnancy. Cover depends on whether the doctor and hospital took part in the plan. ³

What it provides

Care costs that are needed and reasonable. That covers medical, hospital, rehab, equipment and residential care. Benefits available from other sources are offset. There is also a set parental award, and a death benefit. The amounts are set by statute and have been amended over time. Check the current text. ^{3 1}

Deadlines and process

Claims are filed with the Division of Administrative Hearings. The statute sets a filing deadline measured from the birth. The amounts and deadlines have been amended over the years. Confirm the current text, and check with an attorney licensed in Florida. ³

Notice

The statute has rules about telling patients that a provider takes part. Whether proper notice was given has been fought over in court. It is worth asking about. ³

The Virginia program

The Virginia act is set out in Title 38.2, Chapter 50 of the Code of Virginia. ^{4 2}

Who is covered

Virginia draws it just as narrowly. ⁴ The injury is to the brain or spinal cord. It was caused by oxygen deprivation or mechanical injury. It happened during labor, delivery, or resuscitation just after birth, in a hospital. The baby is left permanently disabled in movement. They must also have a developmental disability. Where testing is possible, a cognitive disability counts instead.

As in Florida, coverage depends on whether the physician and the hospital took part. ²

What it provides

Lifetime cover for costs that are needed and reasonable. Other benefits are offset. There is also provision for loss of earnings and other set items. The details are in the statute. ⁴

Deadlines and process

Claims are filed with the Virginia Workers' Compensation Commission. The statute sets a filing deadline measured from the birth. Confirm the current text, and check with an attorney licensed in Virginia. ⁴

What a family gives up

Where a claim is covered, the program is usually the only route. A civil suit against the doctor and hospital who took part is barred. ^{3 4}

That matters in several ways.

No finding of fault. For some families, knowing what happened matters as much as the money. A no-fault program does not produce that finding.

They pay for care, not for loss. These programs pay for care. They are not built to compensate for a child's lost future earnings, or for what the family went through, in the way a civil case might.

Offsets. Both programs offset benefits from other sources. What is actually paid depends on what insurance and other programs cover.

Administration. Families in both programs have raised concerns over the years about how claims are handled. Speak to an attorney. Speak to other families in the program if you can.

None of that makes these programs a bad outcome. Say a child has a covered injury and fault would be hard or impossible to prove. Lifetime coverage without litigation is then a real benefit.

What to do if you are in Florida or Virginia

1. Talk to an attorney licensed in that state, early. Whether a claim falls inside or outside the program is technical. It decides everything that follows.
2. Find out whether the doctor and hospital took part at the time of the birth. ^{1 2}
3. Get the records. Whichever route applies, the records are the foundation. See how to get your medical records. ⁵
4. Note the deadlines. The program deadline and the civil deadline are different. Missing either closes that route. ^{3 4}
5. Ask about the notice requirements, particularly in Florida. ³
6. Read the current statute. Both have been amended over time. Links are in the sources below.