Because the NICA benefits are limited in nature, some families have avoided NICA and successfully pursued a medical malpractice claim for full damages instead. A small number of families have done both; pursued the malpractice claim first, and then later recovered some NICA benefits also. Whether it is wise or even possible for you to avoid NICA, or recover both types of benefits, will depend on the precise details of your case. This is not something that can be answered here with a checklist of objective criteria. The laws in this area keep changing and the date the baby was born and other details may make a big difference, so you should review your particular situation with an experienced NICA lawyer! Some of the issues that will need to be considered are:
1) Was there in fact malpractice that justifies attempting to avoid NICA and filing a malpractice claim instead? If there wasn’t, then NICA may be the only option.
2) Was an obstetrician who attended the delivery a member of NICA at the time of delivery? If he wasn’t, then NICA is not an option, and a malpractice case may be your only option.
3) Did the doctor and hospital give adequate notice to the patient about the NICA plan before the delivery? If not, the doctor and hospital may not have immunity from a malpractice suit.
4) Did the baby weigh 2500 grams or more when delivered (2000 for multiple gestation)? If not, the baby doesn’t qualify for NICA, and a malpractice suit may be the only option.
5) In a case involving death of the baby, was the baby born alive? Stillbirths are not covered by NICA, but babies born alive are covered even if they pass away immediately or months or years later.
6) Did the injury occur during labor, during delivery, or during the immediate post-delivery resuscitation period? If not, then NICA does not apply.
7) Was the injury caused by oxygen deprivation or mechanical injury to the brain or spinal cord? If not, then NICA does not apply.
8) Did the child suffer severe mental impairment and is it permanent? If not, then NICA does not apply.
9) Did the child suffer severe physical impairment and is it permanent? Both mental and physical impairment are required, one or the other will not do. If not, then NICA does not apply.
10) Does the doctor or hospital have enough malpractice insurance to justify trying to pursue the malpractice claim instead of NICA benefits? NICA may be a better option in the long run than suing a doctor who has only limited insurance. On the other hand, if the hospital shares the blame for what happened, hospitals usually have substantial insurance.
11) Is there enough time left on the malpractice or NICA statute of limitations? The NICA filing deadline is the child’s 5th birthday. The malpractice filing deadline could be anywhere from the child’s 2nd birthday to the 8th birthday, depending entirely on the circumstances of the case.
12) Is there any way to get both malpractice damages and NICA benefits? This has been done in the past, but due to changes in the law, this is probably not a viable option any longer.