When Is a Birth Injury Medical Malpractice?
Most births go well. Some problems cannot be prevented, and some conditions have no known cause. Other injuries happen because warning signs were missed or a problem was not handled in time.
Under Florida law, a health care provider is negligent when the care falls below the prevailing professional standard of care: the level of care that reasonably prudent similar providers would recognize as acceptable and appropriate in the circumstances.
In a birth injury case, the questions often include:
- Was the baby's heart rate monitored, and did the team act on signs of distress?
- Was a C-section delayed when the baby needed to be delivered quickly?
- Were forceps or a vacuum used properly?
- Was a stuck shoulder (shoulder dystocia) handled correctly?
- Were the mother's infection, high blood pressure, or bleeding recognized and treated?
A consultation with us is free, and there is no obligation. If we take your case, you owe no fee and no costs unless we recover money for you.
Types of Birth Injuries
Some birth injuries heal. Others last a lifetime. Injuries we review include:
- Cerebral palsy: a group of conditions caused by damage to, or abnormal development of, the parts of the brain that control movement. Lack of oxygen during labor and delivery is one possible cause, but in many cases the exact cause is not known.
- Hypoxic-ischemic encephalopathy (HIE): a brain injury that happens before, during, or shortly after birth when oxygen or blood flow to the brain is reduced or stopped.
- Brachial plexus injuries, including Erb's palsy: damage to the nerves around the shoulder that can weaken or paralyze the arm, sometimes after a difficult delivery. Most babies recover within a few months, but some are left with lasting weakness or paralysis.
- Broken bones, such as a broken collarbone during a difficult vaginal delivery. A broken collarbone usually heals fully without treatment.
- Injuries to the mother, such as severe tears, heavy bleeding after delivery, a torn uterus, infection, and complications of preeclampsia (a serious blood pressure condition of pregnancy).
A diagnosis alone does not show what caused an injury. That takes a careful review of the records by qualified doctors.
Florida's NICA Program: What Parents Need to Know
Florida has a special no-fault program for certain severe birth injuries, run by the Florida Birth-Related Neurological Injury Compensation Association (NICA). When NICA applies, it can replace a malpractice lawsuit against the doctors and hospital involved in the delivery, so we check it first.
Which injuries NICA covers
NICA covers what Florida law calls a birth-related neurological injury. It is an injury to the brain or spinal cord of a baby born alive. It must be caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation right after delivery in a hospital. And it must leave the child permanently and substantially impaired, both mentally and physically. The baby must have weighed at least 2,500 grams (about 5 pounds, 8 ounces) at birth, or at least 2,000 grams (about 4 pounds, 7 ounces) in a multiple birth. Disability or death caused by a genetic or congenital abnormality is not covered.
NICA also applies only if the obstetrical care was given by a doctor who participates in the plan (or, in a teaching hospital, by a certified nurse midwife supervised by one). Participation is a doctor's choice and generally requires paying a yearly assessment.
When NICA is the only remedy
If an injury qualifies, NICA benefits are generally the family's only remedy against the people and facilities directly involved in the labor, delivery, or resuscitation right after delivery. A narrow exception allows a lawsuit, filed instead of taking NICA benefits, when there is clear and convincing evidence of bad faith, malicious purpose, or willful and wanton disregard of human rights, safety, or property.
An administrative law judge at Florida's Division of Administrative Hearings decides whether NICA covers a claim, not the hospital or its insurer. If the judge finds it is not covered, the family can pursue a malpractice case, and the time the NICA claim was pending does not count against the deadline for a lawsuit on the child's behalf.
Notice to expectant mothers
Participating doctors, and hospitals with participating doctors on staff, must give obstetrical patients written notice about NICA's limited no-fault alternative. Notice is not required in an emergency or when it is not practicable. Whether proper notice was given can affect whether NICA is the only remedy, so we check what you received and when.
What NICA pays
NICA pays benefits set by law, without proving fault. They include the child's medically necessary care, therapy, home and residential care, medicine, equipment, and related travel that insurance or government programs do not cover; the cost of the child's health insurance; some counseling for family members, help with transportation and housing, and guardianship legal costs; a capped award to the parents or guardian; a death benefit; and reasonable attorney's fees approved by the judge. Families in the program must keep comprehensive health insurance for the child or apply for Medicaid.
Deadline for a NICA claim
A NICA claim filed more than five years after the child's birth is barred.
Florida Medical Malpractice Laws for Birth Injury Cases
Investigation and notice before a lawsuit
Before a medical malpractice lawsuit can be filed in Florida, the family's lawyer must investigate the claim. A qualified medical expert must give a sworn written opinion that there are reasonable grounds to believe the care was negligent and caused injury. Each doctor or hospital that may be sued must then receive formal notice of intent to sue.
No lawsuit can be filed for 90 days after that notice is delivered, while the providers and their insurers review the claim. The deadline to sue is paused during that period.
Deadline to file a lawsuit
A Florida medical malpractice lawsuit generally must be filed within two years from when the malpractice happened or, if later, two years from when it was discovered or should have been discovered. Except in limited situations, such as fraud or concealment, it cannot be filed more than four years after the malpractice. For a child, the four-year limit does not bar a lawsuit filed on or before the child's eighth birthday. That exception does not extend the two-year deadline, so don't wait.
Shared fault
In most Florida negligence cases, a person found more than 50% at fault for their own harm generally cannot recover anything. That rule does not apply to medical negligence cases. If a patient is found partly at fault, the award is reduced by that share.
Public hospitals
If the hospital is run by a government entity, Florida's sovereign immunity law adds written notice requirements before a lawsuit and limits how much can be collected.
What Compensation Can a Family Recover?
In a medical malpractice case, compensation can include:
- Past and future medical, hospital, and nursing care for the child
- The child's loss of ability to earn money in the future
- Pain and suffering, disability, disfigurement, mental anguish, and loss of enjoyment of life
- The parents' costs for the child's medical care until the child becomes an adult
- Earnings the parents lose caring for the child
- The parents' loss of the child's companionship until the child turns 18, if the injury left the child permanently and totally disabled
- The mother's own damages if she was injured
Florida's statutes still list general caps on non-economic damages, such as pain and suffering, in medical malpractice cases. The Florida Supreme Court has held those general caps unconstitutional, for wrongful death cases in 2014 and for personal injury cases in 2017. Other limits can still apply, including limits on claims against public hospitals and a separate cap that can apply if the providers offer to arbitrate damages and the family refuses.
What Parents Can Do Now
Your child's health comes first, so keep getting the care your doctors recommend. These steps can also protect a possible claim:
- Ask for the records: Request complete copies of the mother's and the baby's records from the hospital and each doctor, including the fetal heart monitoring strips. The mother can request her own records, and a parent can request the baby's. Florida law requires hospitals to provide copies after discharge when asked in writing, and federal privacy law (HIPAA) generally requires a response within 30 days. A copying fee may apply. We can request them for you.
- Keep what you were given: Save discharge papers, bills, insurance statements, and any forms you signed or received before delivery, including any NICA brochure or notice.
- Write it down: While your memory is fresh, write down the timeline of labor and delivery, what you were told, and the names of the doctors and nurses involved.
- Track your child's care: Keep a simple journal of appointments, therapy, symptoms, and milestones, along with related expenses and time missed from work.
- Be careful what you sign or say: Keep signing the consent forms your child's medical care requires. But before you sign a release, an arbitration agreement, or any settlement paper, or give a recorded statement to a hospital risk manager or insurance company, talk to a lawyer.
- Call early: Deadlines can run while a child is still being diagnosed. Calling early gives time to gather records and get the expert review Florida requires.
How We Build a Birth Injury Case
- Free consultation: Tell us what happened. We'll explain your options in plain terms.
- Medical records: We gather the prenatal, delivery, fetal monitoring, and newborn records.
- Expert review: Qualified medical experts review whether the care met the standard of care and whether a mistake caused the injury.
- NICA review: We determine whether NICA may apply and what that means for your options.
- Presuit notice and negotiation: When the claim is supported, we complete Florida's presuit steps and present the claim to the providers and their insurers.
- Lawsuit and trial if needed: If the claim isn't resolved fairly, we file suit and prepare for trial.