Child Birth Injury Lawsuit Proceeds After Three Year NICA Delay
PALM BEACH GARDENS, Fla. (March 25, 2019) – Three years after filing a medical malpractice lawsuit (CASE 3: 05-2015-CA-048229) against Wuesthoff Hospital in Rockledge, Ashley Grant, individually, and on behalf of her minor child, can finally proceed with her medical negligence case that resulted in birth injuries to her daughter.
On November 4, 2015, Ashley Grant filed a lawsuit asserting Defendants Wuesthoff Hospital, among other parties who assisted in her labor and delivery, failed to recognize clear signs of fetal distress, which caused a significant delay in the delivery and birth of her daughter (B.G.).
The underlying lawsuit was stalled after the Defendants moved for an order to abate the case, requesting Florida Birth Related Neurological Injury Compensation Association (NICA) to intervene. NICA is a statutory organization, established in 1984, that seeks to avoid litigation in all birth injury cases by providing up to $100,000 in compensation or a death benefit for an infant in the amount of $10,000. For NICA to apply, petitioners need to meet twelve requirements. The absence of one requirement yields a determination that the case is not compensable, resulting in the case being dismissed from NICA. Once a case is dismissed from NICA, the petitioner has permission to pursue their medical negligence case in circuit court where recovery can potentially be far greater than what the compensation fund provides.
Sean Domnick and Michelle DeLong, attorneys at Domnick Cunningham and Whalen, who represent Ashley Grant and B.G. have spent the past three years advocating for B.G. to have her day in court arguing that NICA should not apply to her. NICA originally found B.G.’s case to be compensable under the compensation fund. This means NICA’s experts opined that B.G. met the twelve requirements to include her in the plan and compensate her for her injuries. However, following extensive discovery initiated by B.G.’s attorneys, NICA’s expert changed her opinion regarding the extent of B.G.’s mental impairment. NICA filed the revised opinion finding the case not compensable and subsequently, on February 21, 2019, Administrative Law Judge W. David Watkins, dismissed the case, allowing Ashley Grant to finally proceed with her lawsuit on behalf of her child.
Sean Domnick, a medical malpractice attorney with extensive experience litigating birth injury cases stated, “Not all birth injuries are a product of negligence and NICA provides an important resource for those families in need. But in cases where there are allegations of gross negligence, these infant victims should not start their lives by being denied their right to justice.”
Florida is one of two states in the country that protect hospitals by capping birth injury compensation through a fund like NICA. Since the fund was created over 30 years ago, it has never been adjusted for inflation.
“NICA is designed to compensate those individuals who are severely impaired as a result of a neurological birth injury. Unfortunately, the compensation set aside for these children is not enough to cover their long-term needs. B.G. is a bright and beautiful child with substantial and permanent physical impairments who will require a lifetime of care. Her quality of life should not be determined by a state statute put in place decades ago,” added Attorney Michelle DeLong.
Domnick Cunningham & Whalen re-opened B.G.’s case in the 18th Judicial Circuit Court in Brevard County on March 23, 2019.
Domnick Cunningham & Whalen is a national civil litigation firm based in Palm Beach Gardens, Fla. The firm specializes in complex litigation including catastrophic personal injury, medical malpractice, nursing home abuse, trucking, and bad faith litigation. For more information, visit www.dcwlaw.com or call 561-625-6260.