In most states these types of claims are handled like other medical malpractice claims, however, two states (Florida and Virginia) have adopted special programs for compensating children who are injured during the birthing process. While the compensation may be substantially less than the damages that could be recovered in a full-fledged malpractice lawsuit, the unique aspect about these special programs is that usually the family does not have to prove that the birth injuries were anybody’s fault.
Florida has a program like this called the Florida Birth Related Neurological Injury Compensation Act (sometimes referred to as NICA), which allows families to recover compensation for certain catastrophic birth injuries without proving anyone is at fault. You do have to file an administrative claim to prove that the injuries occurred during labor, delivery, or the immediate post-delivery resuscitation period. The infant’s injuries must precisely fit the statutory definition, and the obstetrician must have been a member of NICA. The damages that can be recovered may include expenses for medical care, hospitalizations, habilitative care, training, custodial care, drugs, special equipment, related travel expenses, and attorneys’ fees for filing the claim. Parents may also recover up to $100,000. The program will not cover other damages like payment for pain, mental anguish, disfigurement, loss of ability to enjoy life, or the economic loss from the inability to ever work. One serious flaw with this program is that it will not pay what is already being covered by private insurance or any governmental program. Since almost everyone is either insured or covered by Medicaid, in reality the program offers very little to some families.