From the NICA Corner

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From the NICA Corner

Kenney Shipley, Executive Director, NICA

The participation in The Florida Birth Related Neurological Injury Compensation Association (NICA) has increased this year. NICA participation is on a calendar year basis, and at this point there are 729 physicians who are currently participating which is an increase over March of 2002; and if the pattern remains the same as in previous years, by the end of the year we may have over 800, more than in any previous year.

I hope this is at least partly because of the efforts that staff have made to communicate more effectively with the people we serve, and our focus on accepting as many claims as can reasonably be viewed as meeting the strict statutory guidelines. However, I suspect that a lot of increased participation is in reaction to the steep increases in malpractice insurance rates. At $5,000 per year for physicians, $2,500 for nurse midwifes, NICA is still a great value. Any hospital or physician who has ever had a claim that was covered or could have been covered by NICAhas seen the benefit. Claims that could have resulted in multi-million dollar awards, or cost hundreds of thousands of dollars to settle, are covered under NICA at a much lower cost.

Yet there are still problems with coverage that have nothing to do with whether or not a birth injury meets the statutory guidelines.

The most frequent bar to recovery under the NICA statute has been as a result of the failure of the physician or hospital to give the required notice to the patient. This is such a simple requirement. All the participating physicians and hospitals have to do under the statute is to provide a copy of the NICA brochure to each patient. NICA prints and provides these brochures on request free of charge, and they are available to download off of our website, www.nica.com. If it is such a simple requirement, why are so many claims being thrown back into the tort system because of the non-compliance of the giving of notice?

Although the statute does not require a signed acknowledgement or other proof that a brochure has been given to each patient, a judge can require proof that meets a tough evidentiary standard. This means that doctors and hospitals have to prove that they have given a brochure to each patient, and that it is the normal office procedure to do this. A physician must establish a procedure to meet this burden.

In the cases that have been recently decided, a form signed by the patient acknowledging receipt of the brochure has been held to be sufficient. NICAprovides a sample form that is downloadable from our website, and we include information and a copy of the form in each participating physician and midwife package sent out each year when the annual fee is paid. In that package is a memo from the NICA general counsel, which outlines what our experience has been and provides suggested language for physicians and hospitals. We also have a new patient checklist, which is used in some physician practices which includes a place for the nurse, physician or other office staff to check off the providing of the NICA brochure. However many physicians and hospitals do not include this brochure in the normal new patient procedures, and they do not get an acknowledgement form signed by the patient. Without a signed acknowledgement by the patient, the burden becomes much greater to try and establish that the brochure is routinely handed out in all cases, and that the patient received notice.

OK, let’s say you are one of the offices with strict written procedures, and you have a checklist including the NICA brochure handout as a new patient procedure, you include obtaining a written acknowledgement in those procedures and you follow all of these procedures, and a patient refuses to sign your form. What do you do?

The statute requires that you provide notice. You have to prove that you gave the patient the brochure. If the patient refused to sign your acknowledgement form, be sure to have the staff that provided the brochure sign the form attesting that they provided the brochure, and the patient refused to sign the form. Make sure it is clear in the file, your notes, and wherever you keep routine documentation that the brochure was actually given to the patient. Note the names of staff and/or the physician who actually handed the brochure to the patient, the date and the time. All of the steps that can be documented as normal office procedure, such as identifying the name of the person giving the brochure and the date given, are critical to establishing that notice was given. It is a human judge, after all, who must review the written evidence and testimony of the involved individuals and decide who he believes.

That’s the tough news on NICA, here is some more interesting news. With the severity of the malpractice problem growing, the Governor ’s Task Force on Healthcare Liability Insurance included as one of their recommendations continuation of the NICA program, and expansion if actuarially sound. NICA is in the process of pricing three possible areas of expansion to provide information to the legislature. Those areas are:

Lowering the birth weight requirement from 2500 to 2000 grams.
Covering brachial plexus injuries.
Changing "substantial mental and physical injury" to "substantial mental or physical injury".

Will any of these expansions pass? Depending on the cost, and who has to pay the additional cost, these are all possibilities. We will have cost information available by the end of March, and will provide that information to policymakers.

If you have questions or would like copies of any of the forms or brochures we have available, please visit the NICA website at nica.com, or call us at 1-800-398-2129.