A university employer of two OB/GYN physicians can be held vicariously liable for their allegedly negligent acts in the 1998 case of a birth injury that resulted in severe brain damage for a newborn boy.
Although typically the school would be shielded under Florida’s Birth-Related Neurological Injury Act, F.S. 766.301, the school was not extended this protection because the physicians failed to inform their parents of their rights under the act.
While a court previously determined the family was eligible to collect from the act, they have been holding off while they pursue action against the university, which could potentially lead to a substantial amount more compensation for their now profoundly disabled son.
Recent court records don’t give a detailed accounting of exactly what went wrong in the delivery room, but we do know the child suffered oxygen deprivation during labor and delivery that caused him to suffer serious brain injury. His parents filed a complaint on behalf of their son and themselves against the hospital and the university (which employed the doctors) for medical malpractice. Plaintiffs alleged defendants (which did not include the doctors) were both directly negligent, but that they were also vicariously liable for the actions of their employees.
While that claim was pending, the case was allowed to go before an administrative law judge to determine whether the boy’s injuries were compensable under NICA. This no-fault compensation system allows claimants who meet certain criteria to receive lifelong medical care, attorney’s fees and a lump sum award of $100,000.
Eligible children would have sustained brain or spinal cord injury caused by oxygen deprivation or mechanical injury during labor, delivery or immediately post-delivery. General criteria includes:
- Injury to brain or spinal cord;
- Infant born alive;
- Birth weight of at least 2,500 grams (or 2,000 grams in multiple gestation cases);
- Injury caused by oxygen deprivation or mechanical injury during labor, delivery or immediately after;
- Birth occurred at a hospital;
- Child is substantially and permanently mentally and physically impaired;
- Not applicable to genetic or congential abnormalities;
- A physician involved was participating in the program.
If a family accepts this help, they can’t pursue any other medical malpractice lawsuit compensation. It’s only available to those families who have not received a medical malpractice settlement or verdict.
In this case, the family is holding off because there may be much more available by holding the university to account. Here, the administrative law judge (ALJ) that determined the family was eligible for NICA also found the doctors in the case had failed to give the family the required notice of their own NICA participation.
The school sought a summary final judgment for immunity from the birth injury lawsuit under NICA’s immunity provision, arguing that because it was not a participating hospital or doctor, it didn’t have to give notice. Plaintiffs argued that because the school employed the doctors and the doctors were participants in the program and were required to given notice, the school could be vicariously liable.
Trial court denied the school’s motion for summary judgment. School requested review from the state supreme court on the matter. However, the state supreme court just issued a response declining to weigh in on the matter, meaning the trial judge’s denial stands. For the parents of this seriously injured child, that means the case against the school can finally proceed.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Justices Turn Down University of Miami Liability Case, Dec. 31, 2015, CBS Miami
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