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Who should try to avoid NICA? |
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Because the NICA benefits are often so 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, and it is not something that can be answered here with a laundry list 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 malpractice lawyer! Some of the issues that will need to be considered are: 1) Was there in fact malpractice that justifies avoiding 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. 3) Did the doctor give adequate pre-delivery notice to the patient about the NICA plan? If not, he may not have immunity from a malpractice suit. 4) Did the hospital give adequate pre-delivery notice to the patient about the NICA plan? If not, then it may not have immunity from a malpractice suit. 5) Did the baby weigh 2500 grams or more when delivered (2000 for multiple gestation)? If not, the baby doesn't qualify for NICA. 6) In a case involving death of the baby, was the baby born alive? Stillbirths are not covered, but babies born alive are covered even if they pass away immediately or months or years later. 7) Did the injury occur during labor, during delivery, or during the immediate post-delivery resuscitation period? 8) Was the injury caused by oxygen deprivation or mechanical injury to the brain or spinal cord? 9) Did the child suffer severe mental impairment and is it permanent? 10) 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. 11) Does the doctor or hospital have enough malpractice insurance to justify trying to pursue the malpractice claim instead of limited 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. 12) 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. 13) Is there any way to get both malpractice
damages and NICA benefits? A complicated area with no clear cut
answers. See a lawyer with experience in this area.
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