Wilson v. Fla. Birth-Related Neurological Inj. Comp. Ass'n

Chapter 766 sets out Florida law regarding civil medical malpractice claims. But section 766.303, Fla. Stat, provides an even more specific (and mandatory) form of relief for birth-related neurological injury claims. For those claims, the claimant can’t sue in court. The claimant has to file a claim under the Florida Birth-Related Neurological Injury Compensation Plan. Applying for compensation under the Plan is the exclusive remedy for any birth-related neurological injury against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical negligence claim with respect to such injury.

The only exception where someone can sue the provider(s) in court is if the claimant can demonstrate clear and convincing evidence of “bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property,” and the suit is filed prior to and in lieu of payment of an award under the Plan.

Claims under the Plan are directed to the Florida Birth-Related Neurological Injury Compensation Association (“NICA”). NICA does not compensate for all incidents of brain damage sustained by an infant delivered by an obstetrician. Instead, to show a covered “birth-related neurological injury,” section 766.302(2), Fla. Stat., requires the claiming to show (1) an injury to the brain or spinal cord; (2) that is caused by oxygen deprivation or mechanical injury; (3) during labor, delivery, or resuscitation in the immediate postdelivery period; and (4) which renders the infant permanently and substantially impaired.” If the claimant shows elements 1, 2, and 4, a rebuttable presumption arises that element 3 (tying the injury to the birth process) is satisfied.

In this case, Appellant and NICA agreed that Appellant's daughter (“Child”) experienced “some degree of birth-related oxygen deprivation,” but NICA disagreed that the oxygen deprivation caused a brain injury that rendered Child permanently and substantially impaired. For that reason, NICA held that Appellant's claim was not compensable.

Where compensation is denied, the claiming can (and, in this case, did) request a hearing before an Administrative Law Judge (“ALJ”). The parties stipulated that the sole legal issue for the ALJ's adjudication was whether Child “suffered a birth-related neurological injury” as defined by section 766.302(2), Florida Statutes.

The hearing involved a battle of the experts, and the ALJ ended up finding that the Child “suffered oxygen deprivation during the course of labor, delivery, and the post-delivery period,” but that this oxygen deprivation did not cause a brain injury—let alone one that resulted in Child's permanent and substantial impairment. Because the ALJ did not find the existence of a “birth-related neurological injury,” the ALJ dismissed Appellant's petition for NICA benefits with prejudice.

Appellant then appealed to the DCA, arguing that the ALJ failed to apply the statutory presumption that relieves NICA claimants from having to prove when an injury occurred (element 3) if they show the other elements of a “birth-related neurological injury.” An ALJ's interpretation of the NICA plan is reviewed de novo, while its findings of fact are upheld if supported by competent, substantial evidence.

The ALJ correctly found the presumption did not apply because Appellant did not prove the existence of a brain injury resulting in permanent and substantial impairment, and those findings were supported by competent, substantial evidence. NICA’s experts relied on a battery of tests taken before Child's discharge from the hospital, which did not reveal a brain injury. NICA's experts also testified that the purported developmental delays Child is experiencing can be attributed to a variety of factors that are unrelated to a brain injury. While Appellant's experts did not share these views, the ALJ found NICA’s experts more credible. The DCA cannot reweigh the evidence. AFFIRMED.

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