Impact of the Florida Birth-Related Neurological Injury Compensation Association (NICA) on Obstetrician and Attorney Practices

As health reform continues to unfold nationally, one of the more dramatic strategies for reform of the current medical liability system is to move towards a no-fault compensation system. Although, no state has established a comprehensive no-fault medical malpractice system, the Florida Birth-Related Neurological Injury Compensation Association (NICA) is a unique and rare working model of a functioning no-fault insurance program. A cross-sectional design was utilized to survey obstetricians and health law attorneys practicing in Florida in 2011 to ascertain their knowledge and opinions of NICA and its impact on practice patterns and defensive medicine. The findings indicate that respondents believe NICA has had no effect on insurance rates among both obstetricians (39.8%) and attorneys(35.3%) nor did obstetricians (52.8%) or attorneys (35.8%) believe it has affected defensive medicine practices. Additionally, the findings further reinforced stereotypic expectations that obstetricians prefer an administrative process (35%) or arbitration (37.5%), while attorneys have a strong preference towards a standard courtroom venue (57.2%). With over two decades of experience with successful implementation of a no-fault obstetrical malpractice model, Florida has a strong foundation for further bold experimentation. In addition, because of its large population size, the potential for a pilot study expanding the scope of clinical practice coverage is promising. Further study and experimental models should be considered as possible next steps to explore in Florida. Florida Public Health Review, 2012; 9, 110-114. Background Since the middle of the 20th century, among the many voices demanding reform of the United States healthcare system, often the loudest have been calling for reform of medical liability (Kachalia & Mello, 2011). Concerns regarding the current medical liability system include meritless lawsuits, increased liability premiums and defensive medicine practices among physicians, as well as limited access to care and increased costs for patients (Bovbjerg, 1995; Mello, Chandra, Gawande, & Studdert, 2010; Studdert, 2000). Whereas many strategies for medical liability reform exist, one of the more dramatic reforms of the current medical liability system is to move towards a no-fault compensation system, thereby eliminating negligence, and its economic drag on the health system. International Comparison Several no-fault systems for medical malpractice operate internationally. Countries such as Denmark, Sweden, Finland, and New Zealand have accumulated nearly 80 years of experience operating administrative systems that replace traditional tort-based systems (Bismark & Paterson, 2006). In the U.S., the no-fault concept has been applied to motor vehicle and work-related injuries, but no state has established a comprehensive no-fault medical malpractice system. Florida, however, is one of only two U.S. states (the other being Virginia) to have established a no-fault compensation for medical liability arising from severe neurologic impairments suffered by neonates during the birthing process. Neurological Injury Compensation Association Florida’s no-fault program, the Florida BirthRelated Neurological Injury Compensation Association (NICA), was created by the legislature in 1988 in response to a medical malpractice crisis (particularly related to obstetrics) when there were massive increases in malpractice premiums and frequency of claims (Whetten-Goldstein, Kulas, Sloan, Hickson, & Entman, 1999). NICA provides comprehensive lifetime benefits and care for infants that are born with neurological conditions that fit within its eligibility parameters ("Florida Birth-Related Neurological Injury Compensation Plan,"), as well as a onetime monetary award to the infant’s family. NICA is structured after the Worker’s Compensation Model and relies on a public, administrative dispute resolution process, with private funding and public oversight (Sloan, Whetten-Goldstein, & Hickson, 1998). Moreover, a determination of fault is not necessary for claimants to be compensated, thereby eliminating time-consuming and costly disputes (Sloan, et al., 1998; Whetten-Goldstein, et al., 1999). NICA also was designed to stem the tide of outward obstetri-