Capping Damages on Brain Injured Babies: Florida Supreme Court Gives Approval

                 The Florida Supreme Court this week, in Samples v. Florida Birth Related Neurological Injury Compensation Association, upheld the constitutionality of Florida's $100,000 non-economic damage cap for babies who suffer brain injuries due to medical malpractice during labor and delivery.  The court, split 4-3, concluded that the statutory scheme known as NICA (it creates the "Neurologic Injury Compensation Association") satisfies constitutional scrutiny because it provides a reasonable alternative remedy to the civil justice system for brain injured babies.  The no-fault NICA system enables injured claimants to recover money for economic losses plus the $100,000 non-economic cap, on a no-fault basis, if they suffered a qualifying neurological injury during labor, delivery, or resuscitation in the immediate post delivery period in a hospital.

                The Court evaluated the NICA legislation for both equal protection and access to courts challenges and determined, on both issues, that the presence of the reasonable alternative remedy, i.e., the no-fault system with a compensation plan, overcame the constitutional concerns that NICA treats brain injured babies differently than other malpractice victims and that NICA limits brain injured babies' access to Florida courts.

                For example, in the discussion on equal protection, the Court noted the following: "Limitations on damages that raise equal protection concerns under a fault-based system are dissimilar and appropriately viewed differently than limitations on compensation under a system where eligible claimants are assured of a recovery without regard to fault."  Does this mean that limitations in the former context are unconstitutional, whereas limitations in the latter context, such as NICA, are okay?

                The Florida Supreme Court still has under review the case of McCall v. United States of America, where the plaintiff is challenging the constitutionality of Florida's medical malpractice damage cap for all other medical malpractice cases other than NICA cases.  The McCall case does not involve a statutory scheme that provides an "alternative remedy" nor does it provide "recovery without regard to fault."  It will be interesting to see what the Court does with McCall.

                For a copy of the Samples opinion, click here.

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