NICA Plan Cannot Force Exclusiveness of Remedy Where Rejected By Parents

Medical Malpractice

In the case of Florida Birth-Related Neurological Injury Compensation Association v. Luis Arturo Jimenez, Case Number 3D18-1814 (Fla. 3d DCA August 28, 2019), Florida’s Third DCA held that parents who chose to reject a NICA award to pursue a lawsuit under the exceptions listed in section 766.303, Fla. Stat. could not be forced to participate in a determination of damages under NICA.


The child involved in this case was born prematurely and diagnosed with cerebral palsy. The child’s parents filed a “petition of protest” to attempt to declare NICA unconstitutional and sought to claim exceptions cited in section 766.303, Fla. Stat. for situations where there is clear and convincing evidence of bad faith, malicious purpose, or willful and wanton disregard for human rights.

The administrative law judge (ALJ) dismissed the NICA claim which allowed the parents to pursue their own lawsuit outside of NICA.

The Appeal

On appeal, the Third DCA considered arguments brought by NICA that seemed to require the parents to participate in NICA as a mandatory program. However, the Third DCA was not compelled and instead affirmed the ALJ’s dismissal of the NICA action citing the exceptions listed in 766.303.

With that being said, electing to pursue a claim outside of NICA may be a risky move because you move from a essentially a no-fault award system under NICA to having to prove bad faith or malicious purpose by clear and convincing evidence (which is a higher standard than the negligence standard of “more likely than not”). Therefore, the parents may be giving up what is essentially a guaranteed award (albeit limited in value) for a claim that may or not succeed at all (this issue was discussed in the concurring opinion).

The case does not address what bad faith or malicious purpose that there might be, although the ALJ excused the notice requirements required by section 76.316 “due to the Child’s emergency medical condition at the time of treatment.”

Get Legal Help For Your Child’s Birth Injury Case

When making decisions related to a birth injury suffered by your child, you should seek the opinion of an attorney to determine whether your child has a claim under a “no-fault” liability system such as NICA or whether a birth injury lawsuit needs to be filed.

Call today to schedule your free consultation with a Lakeland birth injury lawyer to determine whether your case has legal merit. There are no fees or costs unless money is recovered for you.

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August 28, 2019