Current Status: Proposed NICA Expansion

News

Have a proposal for FOGS or looking for a service?
Use this link to contact our office.
More...

Thank You!
FOGS and the Florida Section ACOG recognize their corporate supporters
More...

Liability Issues Report
Please use this form liberally to report the related practice problems you are facing
The Form

On Call Medical Coats
FOGS has teamed up with On Call Medical Coats to offer our members quality embroidered labcoats
Shop for Coats

FOGS Endorsed Malpractice Carrier offering a 5% discount to FOGS members
More Info

Lubell & Rosen
FOGS Endorsed
Pre-Paid Legal Defense
More Info

Your practice could receive a dividend of up to 24.8% of your workers compensation premium.
More Info

Current Status: Proposed NICA Expansion

Robert W. Yelverton, MD
Immediate Past President, Florida OB/GYN Society

For those of you who read this newsletter on a regular basis, you may recall an editorial I wrote in the Fall of 2003 advocating an expansion of the Neurological Injury Compensation Act (NICA) to include compensation for permanent brachial plexus injury. The editorial also expressed the desire by FOGS that all insurance companies underwriting medical professional liability in Florida either actuarially adjust rates for NICA participants or give a flat rate discount to participants to cover the NICA fee.

Through the efforts of FOGS and NICA and with the cooperation of the Department of Financial Services for the Office of Insurance Regulation, we were able to ensure that these insurance companies did indeed grant full discounted rates for NICA participants with the reduction of $4750 from the manual premium rate.

However, FOGS efforts toward NICA expansion to cover permanent brachial plexus injury has not been as rewarding. In 2003, responding to testimony by FOGS, the Governor’s Select Task Force on Healthcare Professional Liability Insurance recommended the retention of NICA in its filed report to Governor Jeb Bush and suggested that consideration be given to expansion. Instead of considering expansion, the 2003 Legislature directed the Office of Program Policy Analysis and Government Accountability (OPPAGA) to review the Florida Birth Related Neurological Injury Compensation Association’s eligibility requirements in consideration of expansion.

In its special report, OPPAGA concluded that the majority of stakeholders were in favor of the expansion of NICA. OPPAGA’s analysis of current research studies evaluating the NICA program have concluded that the program has compensated fewer claimants than expected. These studies identified several reasons for this, including restrictive compensatory criteria. Several of these studies have recommended expanding NICA’s compensation criteria to improve claims compensation and the benefits of a no-fault system. The OPPAGA report acknowledged that any plan to expand NICA would result in increasing program cost and an increase in assessments to the stakeholders. The FOGS recommended expansion of NICA coverage to cover permanent brachial plexus injury was estimated to cost from 9.5 to 12.7 million dollars per year.

The needed increased assessment could be divided between participating doctors, midwives and participating hospitals, including many of the hospitals currently exempt from NICA assessment.

Since brachial plexus injury is not considered a catastrophic injury to the level of those injuries currently compensated, any change of this nature, even if passed by the Legislature, would almost certainly result in a constitutional challenge in the courts. With the insurance companies’ credit for NICA coverage, FOGS feels that NICA expansion is affordable. However, we remain very cautious in regards to the possibility of placing the entire NICA program in jeopardy should there be constitutional challenges to the expansion to cover brachial plexus injury.

The survey below was taken in order to assess the current continued interest of FOGS members in NICA expansion. The survey, with 125 respondents, suggests that the FOGS general membership has a very high interest in NICA expansion. The survey also suggests that either the insurance companies are not providing NICA credit to all participants, or if they do, the obstetrician is unaware of that fact.

Based on the results of this survey, FOGS will continue to pursue a constitutionally acceptable expansion of NICA to include permanent brachial plexus injuries.

FOGS SURVEY RESULTS ON NICA EXPANSION FOR BRACHIAL PLEXUS INJURY

Total Respondents 125
1) Do you have medical malpractice insurance coverage? 84 Yes 41 No
2) Do you participate in NICA? 90 Yes 34 No (If No, answer a. If Yes, proceed to Question 3.)
a. If the answer to Question 2 was no and brachial plexus were covered, would this action result in your participation in NICA? 12 Yes 18 No
3) Does your med Mal carrier provide you with a NICA premium credit? 48 Yes 43 No
*11 of those responding No to Question 3 also responded No to Question 2.
4) Would you be in favor of expansion to include brachial plexus injuries? 104 Yes 8 No
5) Would you be willing to pay the higher premium (possibly $1,000 or greater)? 80 Yes 29 No