TALLAHASSEE – In deciding not to hear a dispute over whether the University of Miami can be held liable for a birth injury, the Florida Supreme Court has allowed a family to continue to pursue its claim.
Spencer Aronfeld | http://www.aronfeld.com/
Miami attorney Spencer Aronfeld, who represents plaintiffs in birth injury lawsuits, told the Florida Record he was thrilled by the decision. He’s not involved in the lawsuit against the university.
“When you talk about birth trauma, it gets no more catastrophic than that,” he said. “They have to live with the consequences of that negligence for the rest of their lives. They never even have any ability to experience life without having those limitations. It’s a hugely enormous economic loss. The kids can live 75 years, 80 years but they need constant nursing care.”
The parents of Michael Ruiz, who is now 17 years old, filed a suit against UM because their son suffered a brain injury allegedly during delivery at Jackson North Maternity Center in Miami-Dade County. In 1998, Ruiz was delivered by two physicians employed by the university’s medical school.
The university appealed to the Supreme Court, seeking to reverse a 3rd District Court of Appeals decision that the school could be held liable for the boy’s injuries. The university argued it’s shielded by the state’s Neurological Injury Compensation Association – Florida’s no-fault compensation program that reimburses qualified families for medical-related expenses.
NICA comes with the caveat that families can’t sue the participating doctors and hospitals for malpractice. However, physicians must inform patients of their participation in the program. Because the two physicians failed to give notice to the family, they effectively waived their protection against a lawsuit. The family didn’t sue the physicians directly but the court has allowed the suit to continue against the university, who could be held vicariously liable for the actions of its employees.
Aronfeld said the courts made the right legal decision because families are entitled to know the risks they’re taking when choosing a doctor.
“People cannot make decisions based on who they’re going to have deliver the child without having the full benefit of the information,” he said.
Robert Joyce of Joyce & Reyes Law Firm in Tampa called NICA “a total scam.”
“First, it was supposed to be a ‘no fault’ system whereby babies injured at birth would get compensation without having to prove fault. Sounds good in theory, but in reality, it is totally inadequate,” he told the Florida Record. “Moreover, it is not a truly ‘no fault’ system because they often deny claims suggesting that they do not meet the definition in order to qualify for a NICA claim.
“In the rare case that they do find to meet the criteria, the benefits are woefully inadequate.”
Joyce, who also represents plaintiffs in brain injury suits, said NICA takes away injured infants and their families’ right to a trial by jury.
“As a result, the burden to care for these kids is shifted from the medical industry to the families of these children who can afford it the least,” he said.
Aronfeld offered a similar point of view. He said families don’t often understand NICA notices and they may not have a choice to see a different physician, anyway.
“(NICA is) designed in a way that really protects the pocketbooks of hospitals and doctors…at the expense of, in this case, the most innocent and tiniest members of our community,” he said.