The NICA Experiment
Doctors and lawyers laud the 20-year-old, Legislature-created program, but lawyers cite widespread flaws.
Twenty-five years ago, Florida was facing a medical-malpractice liability crisis. Between 1980 and 1986, premiums for Florida OB/GYNs had risen nearly 400%, and Miami-Dade County OB/GYNs were paying upward of $175,000 for coverage. Some doctors threatened to go on strike or leave the state, creating widespread fear that before long pregnant women might be turned away from hospitals. Lawmakers blamed the problem on too many malpractice claims and bloated jury awards and looked for a way to reduce the frequency and severity of tort cases.
TRAUMATIC: Joel and Jill Cotton and daughter Mallory visit Noah's gravesite. Noah was deprived of oxygen during a difficult delivery in 1999 and developed cerebral palsy. He died in 2002. "It's a secret society over there," Joel Cotton says of his dealings with NICA.
The Legislature's solution was the creation of the Florida Birth-Related Neurological Injury Compensation Association (NICA), a no-fault compensation program restricted to a narrow class of infants who suffered catastrophic injuries during the birth process. Disposing of such cases in an alternative manner, the lawmakers reasoned, would unburden the tort system and hopefully stabilize liability premiums for doctors.
Under NICA, infants who suffer a brain or spinal cord injury caused by oxygen deprivation or mechanical injury during labor or delivery or from resuscitation immediately after delivery are entitled to compensation for all necessary and reasonable medical expenses that are not already covered by private insurance news or other sources. Additionally, their parents receive a one-time $100,000 payment and a $10,000 death benefit. Doctors, hospitals and the state fund the program. OB/GYNs pay $5,000 each year to participate in NICA and receive an equivalent reduction on their insurance policies. Midwives pay $2,500 for inclusion in NICA. Non-participating physicians pay $250 a year, and hospitals contribute $50 per live birth to help fund NICA.
NICA Executive Director Kenney Shipley
Nearly 20 years after its inception, however, NICA is getting mixed reviews. The 1,035 doctors and midwives who participate tend to laud the program. Resolving matters on a no-fault basis reduces some of the stress associated with practicing high-risk medicine, and several subsequent analyses of the program indicate it has reduced malpractice liability premiums. NICA Executive Director Kenney Shipley says the program saves millions of dollars each year by keeping cases out of the courts. "You get in front of a sympathetic jury, and people want to provide for a baby no matter what the cost, and witnesses often inflate what the potential costs are in the future. We pay actual costs. We pay at reasonable rates for the communities."
Dr. Robert W. Yelverton, CEO and medical director of Tampa Bay Women's Care and the immediate past president of the Florida OB/GYN Society, just finished chairing a task force that spent a year looking at NICA. An actuarial firm hired by the task force recently concluded that NICA saves OB/GYNs about $49,770 on their malpractice premiums.