- 2015 Volume 12 Number 1 January- March
- NICA – Florida’s Innovative Alternative to Costly Litigation
NICA – Florida’s Innovative Alternative to Costly Litigation
Kenney Shipley, Executive Director
Florida Birth-Related Neurological Injury Compensation Association
It has been 25 years since The Florida Birth-Related Neurological Injury Compensation Association (NICA) was established to help curtail the unpredictable cost of covering certain catastrophic birth injuries in the tort system. The statutory plan was designed as a no-fault system to save hospitals and physicians’ malpractice costs and provide a better, faster and more reliable compensation structure for infants with certain neurological injuries. Any risk manager who has had a claim accepted for coverage by NICA, whether insured or self-insured, should be able to tell you that it is a better alternative. Of 116 hospitals that provide obstetric services all but 13 have had NICA claims accepted, and although the average cost for NICA for lifetime care for a brain injured child is $4.9 million, this is money that actually goes to the care of the child and to give the family stability. On an incurred basis, NICA pays less than 1% in attorney fees. Now think of the cost of one of these injuries in the tort system. In recent years, these have resulted in damages of $20 million and up according the Florida Office of Insurance Closed Claim Database with one settlement (not a verdict) amounting to $149 million. It is nearly impossible to predict, plan and insure for these claims. What is worse, a large percentage of the money from these settlements and verdicts go to the plaintiff attorney, sometimes leaving the family with much less than is needed to care for the affected child.
In case you have been fortunate enough not to have been involved in a NICA claim, this is how it works. We usually receive the first notice when a parent, the petitioner, files a petition with the Division of Administrative Hearings (DOAH) in Tallahassee. We provide the information and the form necessary to file on our website and will even pay the $15 filing fee if the petitioner is pro se and can’t afford it. Sometimes we hear from a hospital risk manager or an obstetrician about a possible claim, and we recommend that they have the patient contact us if possible. We can’t actually open a claim until a petition is filed at the Division and served on us, but we can open a “potential” claim, and can talk to a pro se petitioner and help them through the process.
If there is an attorney involved, usually we get it after suit has been filed and the hospital or physician has moved to have a circuit court case abated until a NICA determination is made. Motions for abatement on these cases are granted almost 99.99% of the time if there is any allegation of a birth related injury, even if it is pretty obvious that they won’t meet the statutory threshold. It is solely in the jurisdiction of the administrative law judge (ALJ) to make a determination of whether or not there is a qualifying injury. You can view the motion template and supporting case law used to assist in getting an abatement on the NICA website: https://www.nica.com/hospitals/abate.html
A petition is served on all parties by the ALJ, and this is the only notification any of the parties, other than NICA and the petitioner, will receive until a final order is issued. The only exception would be is if a motion to intervene in the proceedings is filed. Most hospital counsel are well aware of this and either intervene or follow the case on the DOAH website until a determination has been made by the Administrative Law Judge. DOAH is paperless, and all pleadings are available online, usually within a few hours after filing. It is an easily searchable website (http://www.doah.state.fl.us/ALJ
) and allows interested parties to monitor and research cases.
NICA notifies involved physicians in writing and explains the process to them. Often the hospital and/or physician will wait until NICA files a response and will only intervene if they disagree with the NICA position or feel there are additional issues not recognized or raised by NICA.
Florida law requires that participating physicians and hospitals with participating physicians on staff provide notice to the obstetrical patients of the NICA plan and if there is a question about whether or not proper notice was given, the hospital or physician must intervene to defend that issue as NICA does not have the evidence necessary to do so.
Upon receipt of a petition, a review is conducted by the Executive Director and the Nurse Case Manager who handles intake. A request is made for the maternal and infant medical records which are sent to a maternal-fetal specialist for an opinion as to whether there was an obstetric event. If the answer is in the affirmative, an appointment with a pediatric neurologist is scheduled to perform an independent medical examination to determine whether there is an injury that rises to the statutory requirement, i.e. injury due to loss of oxygen or hypoxia, a mechanical injury, or a permanent and substantial physical and mental impairment. Based on their opinions, NICA files a response either accepting or denying the claim.
A large majority of claims are relatively easy to determine from a review of the clinical record. Many times NICA findings support the petitioner’s claim and a stipulation is entered into accepting the claim and eliminating the need for a hearing. NICA files the stipulation and usually within a week to two an order allowing NICA to begin compensation is received. Cases that have disputed facts usually go to hearing. Although there is discovery and often depositions involved in the hearing process, it is a much more efficient process than circuit court. The hearing is before an ALJ so the discovery process is quite a bit more informal, and hearings are scheduled quickly. Hearings generally last a few hours to one day. Even when there are disputed issues, the average time to resolve a NICA case is about 180 days. Some take longer, but the vast majority are handled in a timely manner.
The most frequent problem encountered with a claim is failure of the hospital or physician to give timely notice and document both through written procedures and by having the patient sign an acknowledgement form saying that they have received the brochure printed by NICA which must be provided by the hospital and physician. A signed acknowledgement form creates a rebuttable presumption that notice has been given. Case law is well settled in the Bennet v. St. Vincent’s Medical Center case as to what “timely notification” means. You can find a copy on the DOAH website of the Supreme Court Case under DOAH Case # 06-2422. It is a very fact- based issue decided by an ALJ who has sole authority to determine whether proper notice has been given. There is only one ALJ at any given time who handles all NICA cases. While best practices require that a signed acknowledgement form be obtained from the patient and carefully retained, even in the absence of that form, evidence can support that the brochure was properly given.
The current ALJ issued an order in a recent case which illustrates well what physicians and hospitals are expected to do to demonstrate that proper notice was given in the absence of the actual signed acknowledgement form that couldn’t be found in the clinical record.
This case is also available on the DOAH website under the Final Order on Notice that is posted for Case # 13-3287. Although the physician was unable to produce a signed form in this case, there was testimony from the Physician’s Assistant about what is routinely done with each new obstetric patient, the forms routinely included in the packet given to a new obstetric patient, the time always allocated to a new obstetric patient and the person that always talked to new obstetric patients. There was also testimony about all of the subjects discussed at that appointment, including NICA. Although the petitioner in this case disputed the testimony and gave conflicting testimony, the PA’s testimony in conjunction with the appointment records from the office were credited by the ALJ who found that timely notice had been given as soon as the physician/patient relationship was established.
There was also conflicting testimony and evidence regarding the hospital’s notice in this case. Notice must be given “as soon as practicable” upon initiation of the patient/provider relationship and in this case, the petitioner had visited the emergency room several times before her admission for labor, and had taken a tour of the hospital several months prior. Each of the hospital visits were either for unrelated health issues or for out-patient lab work or ultrasound. The ALJ concluded that none of these established the relationship as an obstetric patient. There was conflicting testimony as to whether the petitioner pre-registered. She stated that she had filled out paperwork and pre-registered at the time of one of her outpatient visits. The hospital had detailed records of how pre-registration is conducted, and what entries are made to the hospital system in the case of a pre-registration, as well as how accounts are set up for the different types of visits. Again, because the hospital had detailed procedures in place and was able to document the differences, even absent a signed acknowledgement form, the ALJ found that proper notice had been given by the hospital.
Once a claim has been approved, NICA provides anything that is “medically necessary and reasonable” for the child for the rest of his or her life. This term is very broadly construed by both NICA staff and the ALJ in case of a disagreement over benefits. If there is a Medicaid lien, it is withdrawn – NICA is not a “third party” for the purposes of collecting a Medicaid lien. There is a $100,000 lump sum paid to the family or on behalf of the family as directed. A NICA Nurse Case Manager is assigned and available to the family every day. NICA staff visit the family to ascertain needs, and can even pay the family in lieu of a private duty nurse to help care for the child. Most children need some level of nursing care which is provided in the home. We arrange for therapies without a numerical limitation, cover deductibles and pay for drugs, equipment, even spas and vans for children. NICA gives the family some level of financial security and support for the very complex needs of these children. There are no arbitrary caps or limitations.
NICA is efficient both from a legal process or litigation standpoint and as a mechanism to support and compensate children with very complex injuries. Although 25 years old, NICA remains one of the most innovative programs in the American system of jurisprudence. While disliked and opposed by many plaintiff trial lawyers, there are some that recognize the long term benefits it provides for the child and their family, and the ease of determination. If you have questions about NICA I would be very happy to answer them and provide in service training. Please look at our website at www.nica.com
, and give me a call any time.