Don’t throw out the baby with the bathwater to reform fund for infants with disabilities

Little baby splashing in bath
The NICA is the fastest route to guaranteed financial help for families facing the biggest, most heartbreaking challenges of their lives.

Influence comes in many forms and decorated Miami Herald reporter Carol Marbin Miller rightly earned a place among the INFLUENCE 100 in 2018.

For decades, Miller has been a passionate champion for children and families, especially in the cause of children with disabilities.

A new Herald/ProPublica series, “Birth & Betrayal,” cowritten by Miller and Daniel Chang, makes for emotional reading. As a parent of a healthy daughter, I can hardly imagine anything more challenging than raising a child with a profound disability.

Miller’s stories bring that challenge to life.

However, before lawmakers overreact (or overreach) to the recent Herald coverage of Florida’s well-established Birth-Related Neurological Injury Compensation Association, they would do well to remember why the group exists.

In the Herald series, this back story is either barely mentioned or misrepresented.

Trial lawyers would indeed relish gutting or ending the NICA, but it would be a disaster for many Floridians.

More than three decades ago, the Legislature created the NICA during a Special Session on insurance reform. It set up a no-fault alternative in reaction to a spike in medical malpractice lawsuits, claims, and rising insurance premiums.

It was such a problem, several obstetricians stopped delivering babies in Florida.

How big was this spike? From 1980 to 1986, medical malpractice insurance premiums for OB/GYNs in Florida rose a whopping 395%.

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And while the Herald series reports no decrease in OB/GYNs during that time, in fact, many OBs were dropping their high-liability baby delivery practice and staying in Florida as practicing gynecologists.

The situation became so urgent lawmakers called a Special Session in 1988 to deal directly with the issue and ensure pregnant women could find someone to deliver their babies.

One concern is the Herald series frames this issue from a fixed point of view. And if trial lawyers use the Herald reporting as a platform to force a hasty reaction by lawmakers — possibly tossing out the NICA entirely — it is easy to imagine the return of nine-figure medical malpractice lawsuits against hospitals and OB/GYNs, and a windfall for attorneys.

In 2017, the Florida Supreme Court ruled that caps on noneconomic damages in medical malpractice claims were unconstitutional. As a result, there’s no longer a limit on what injured parties can recover in such cases.

The NICA is the only thing standing between trial lawyers and a new wave of potentially lucrative lawsuits.

The already-high medical malpractice insurance premiums paid by OB/GYNs will skyrocket (again), with many scaling back their practice of delivering babies (again), which only exacerbates the current physician shortage statewide.

With a growing population, Florida needs more obstetricians delivering babies, not fewer. And certainly, the state does not need a repeat of the obstetrics crisis that led to the NICA’s creation in the first place.

While the Herald chronicles stories of families who struggled to get bills paid, it quotes (to a lesser degree) those families who consider the program a lifeline.

This narrative does not consider the reality of successes in the NICA program. Remember, the alternative is years of painful litigation while caring for a seriously disabled child, with no guarantee of success in court.

As the NICA pointed out this week in a statement, its payments for a lifetime of care average $4.9 million per child (not including the initial $100,000 payment and adjustment for inflation). That money goes directly to families, based on a child’s unique needs over the course of their lifetimes — and avoiding a protracted legal battle.

The Herald may criticize the NICA for the size of its reserves, but those reserves must be sufficient to pay for the needs of the children it will serve in the future. It would be imprudent to spend those funds now, leaving the future needs of children and their families unmet.

CFO Jimmy Patronis is right in saying this critical safety net program can do better, and the audit he suggested (and that the NICA leadership embraces) is a prudent next step.

Beyond that, the Legislature should approve NICA’s request to increase the upfront payment to families from $100,000 to $250,000 and increase the death benefit from $10,000 to $50,000.

It’s the right (and humane) thing to do.

Kneecapping this effective program, or even throwing it out entirely, would be a mistake. The NICA is the fastest route to guaranteed financial help for families facing the biggest, most heartbreaking challenges of their lives.

Slashing the program does nothing to help families of vulnerable children and would only give trial lawyers reason to celebrate.

Peter Schorsch

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including Florida Politics and Orlando Rising and Sunburn, the morning read of what’s hot in Florida politics. Schorsch is also publisher of INFLUENCE Magazine. For several years, Peter's blog was ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.



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