Facing the reality of your child having a birth injury is nothing short of overwhelming as a parent. Birth injuries can have devastating consequences both for the child, and the family that can result in lifelong medical expenses and emotional distress. While it’s possible to secure a substantial settlement with the aid of Florida birth injury lawyers, the complex legal landscape around birth injury claims can further compound your stress, making it difficult to know how to proceed. In this complete guide, we’ll explain everything you need to know about Florida birth injury claims, including: what types of damages you can recover, how damages are calculated, what the limits are, and give insight into Florida’s unique NICA program.
A birth injury claim is a type of medical malpractice lawsuit that seeks to hold a healthcare provider accountable for causing harm to a child during pregnancy, labor, delivery, or shortly after birth. Birth injuries can occur due to a variety of factors, such as:
Some common birth injuries that can result from medical negligence are: cerebral palsy, Erb’s palsy, hypoxia, brain damage, skull fractures, nerve damage, spinal cord injuries, facial paralysis, and brachial plexus injuries.
To file a birth injury claim in Florida, you must prove that the healthcare provider breached the standard of care that they owed to you and your child, and that this breach caused your child’s injury. The standard of care is the level of skill and competence that a reasonably prudent healthcare provider would exercise under similar circumstances. You will need to provide evidence of the provider’s negligence, such as medical records, expert testimony, witness statements, and photographs. This in itself is a feat, and typically requires the skilled experience of Florida birth injury lawyers, as their expertise and knowledge of the intricacies of the law can help you gather and prove the standard of care breach.
When you file a birth injury claim for compensation, you’re demanding reparation for the legal damages inflicted on your child. These damages broadly fall into three categories, and the total compensation is often a cumulative result of these.
1. Economic Damages: These are the financial costs, such as medical expenses (past and future) and potential income loss, associated with your child’s birth injury (if you have to quit your job, or reduce your hours to care for your child). It could also include rehabilitation and special education costs, related costs to home modifications and assistive devices, as well as the loss of earning capacity (if your child’s injury affects their ability to work in the future).
2. Non-Economic Damages: These damages cover intangible losses such as your child’s pain and suffering and emotional distress. Permanent disabilities or disfigurements are also eligible for non-economic damages. Other than these, it could also include loss of enjoyment of life, loss of consortium (loss of companionship and intimacy with a spouse), and disability.
3. Punitive Damages: These are awarded to punish defendants whose actions are grossly negligent. A court awards these damages to deter others from acting similarly in the future.
The calculation of damages is a complex process and is dependent on a variety of factors like: severity of the injury, how it will impact quality of life, what the life expectancy is, what their future earning potential looks like, and the degree of negligence involved. For economic damages, these are rooted in the tangible financial costs, while non-economic damages are computed via one of the following two methods:
1. Multiplier Method: This method involves applying a multiple (usually between 1 and 5) to the economic damages, depending on the severity of the injury.
2. Per Diem Method: This method involves assigning a flat rate for each day the victim will suffer from the injury, both now and in the future – set as a day’s wages.
Punitive damages are awarded based on the court’s discretion, following the evaluation of previous cases and the defendant’s actions. It is important to note that while there isn’t a “fixed” formula for calculating damages in a birth injury claim, generally speaking the more severe and permanent the injury, the higher the compensation will be.
To calculate economic damages, you will need to provide documentation of your past and future expenses related to your child’s injury. This may include medical bills, receipts, invoices, pay stubs, tax returns, and expert opinions on the cost of future care. For non-economic damages, you will need to provide testimony from yourself, your family members, your friends, and other witnesses who can attest to how your child’s injury has affected their physical and emotional well-being.
Each state has its own laws limiting the amount of money that one can recover from a personal injury or medical malpractice claim. In Florida, there are no caps or limits on economic damages for standard personal injury cases, or on non-economic damages involving wrongful death and non-fatal injuries. However, an exception to this is where it concerns birth-related injuries, as Florida has a state-funded program that ensures birth-injured children and adults receive the care they need while simultaneously reducing financial burden on families and medical providers.
The Florida’s Birth-Related Neurological Injury Compensation Association (NICA) is a state-funded program that provides no-fault compensation for children who suffer certain neurological injuries during birth like: spinal cord injuries with motor dysfunction, cerebral palsy with motor dysfunction, and brain damage with motor dysfunction. The program aims to reduce the cost of medical malpractice litigation and ensure adequate care for the affected children. The benefits of NICA include:
1. An initial payment, set and capped at $250,000.
2. Lifetime ongoing payments for all medically necessary and reasonable expenses needed to support the child’s care and quality of life.
3. The program also has a death benefit of $10,000.
It’s important to note here that parents who have a child that qualifies under the program can expect reimbursements IF they can provide proof of medical necessity and denial of coverage or proof that other coverage is not available. Co-pays, deductibles and other out-of-pocket expenses that are medically necessary and reasonable are eligible for reimbursement when a service or item is otherwise covered under another plan or program.
The rationale behind the compensation cap is to balance the interests of the claimants and the taxpayers who fund the program. The cap is intended to provide fair and reasonable compensation for the non-economic losses of the claimants, while also preserving the financial viability of the program and avoiding excessive payouts that could deplete its resources. The cap is also meant to encourage more physicians to participate in the program and provide obstetrical services in Florida, as they are protected from liability lawsuits if they comply with the program’s requirements.
If you choose to receive care from a NICA-participating provider, you will have to sign a consent form that waives your right to sue for birth injuries covered by the program. If you do not sign the consent form, you may still be able to file a birth injury claim against the provider. It is highly recommended that you consult with Florida birth injury lawyers prior to signing any paperwork related to your child’s injury, to ensure that you are fully aware of your legal options and rights.
Another factor that may affect your compensation in a birth injury claim is the insurance policy limits of the healthcare provider. In Florida, doctors are required to carry medical malpractice insurance ($100,000 minimum) in order to practice medicine at all, and to have hospital privileges, they must carry at least $250,000 according to statute 458.320. Some providers may have higher or lower limits depending on their risk level and financial situation. The insurance policy limits may affect your compensation in two ways:
1. If the policy limit is lower than your damages, you may not be able to recover the full amount of your compensation from the insurance company. You may have to pursue the provider’s personal assets or other sources of recovery.
2. If the policy limit is higher than your damages, you may be able to negotiate a settlement with the insurance company without going to trial. The insurance company may be willing to pay you a lump sum that is close to or equal to your damages in order to avoid further litigation costs and risks.
Filing a birth injury claim in Florida can be a complex and challenging process. You will need to gather evidence, prove negligence, calculate damages, negotiate with insurance companies, and possibly go to trial. You will also need to deal with the emotional and financial stress of caring for your injured child. That is why you need a Florida birth injury lawyer on your side. Our lawyers here at Personal Injury of Florida can help you by:
As experienced Florida birth injury lawyers, we can help you pursue a birth injury claim against a negligent healthcare provider and recover the damages that you and your child need and deserve. We can also help you navigate the NICA program if your child’s injury qualifies for it.
If your child suffered a birth injury in Florida due to medical malpractice, you deserve justice and compensation. You should not have to bear the burden of your child’s injury alone. You should contact one of our Florida birth injury lawyers as soon as possible to discuss your case and explore your options. We are available 24/7, 7 days a week and offer free consultations.
Do not wait any longer. Contact us at 561-507-5700 and speak with one of our Florida birth injury lawyers today to get started on your case.