Hospital Can’t Avoid Med Malpractice Suit Over Birth Injury, Appeals Court Says

Florida lawmakers established the Birth-Related Neurological Injury fund in 1988 to provide a no-fault remedy for parents of children with certain injuries incurred at birth, with an aim toward reducing the soaring cost of medical malpractice claims.

But hospitals cannot force an appeal on that state-funded method of compensation if the family declines to pursue it, a Florida appeals court decided this week, opening the door to potentially costly malpractice litigation for the University of Florida, its Shands Jacksonville Medical Center, and its insurance providers.

The medical center had argued that Jennifer and Marlon Chavez, parents of a child injured at birth, must adjudicate the injury fund claim through the state Division of Administrative Hearings (known as DOAH). The Chavez family had initially petitioned for compensation from the injury fund in 2018, but the fund’s manager, the Neurological Injury Compensation Association, determined that the Chavez claim was not compensable and the child did not meet the criteria of mental impairment spelled out in the statute, the 1^st District Court of Appeals explained in its opinion, posted Wednesday.

Shands and UF sought to intervene in the case and asked a DOAH administrative law judge to overturn the injury fund’s decision. At that point, the Chavez family filed an amended petition, dropping its own claim for fund payments. The DOAH judge in 2023 agreed and denied compensation.

The medical center appealed to the 1^st District Court of Appeals in Tallahassee. But the appellate judges found that Shands and UF were not injured parties and have no standing to press the appeal.

“The whole point of the Plan is to facilitate—in lieu of a judicial proceeding—no-fault, yet exclusive, compensation from state funds for the benefit of those children claimed by their legal representatives to have suffered a BRNI,” District Court Judge Adam Tannenbaum noted in the opinion, dismissing the hospital’s appeal (italics his).

The opinion suggested that UF’s appeal was a bit of a stretch.

“Both appellants (UF and Shands) … rely on what they admit is ‘an odd interpretation’ of the statute, to argue that a parent, even if not a claimant, must seek ‘an ALJ determination on compensability before pursuing or continuing’ a civil suit,” the judge wrote.

Robert Jarvis, professor at Nova Southeastern University’s Shepard Broad College of Law, said Wednesday that the appeals court ruling now means the family can file a malpractice suit directly against Shands and the University of Florida.

“One has to give credit to UF and Shands for trying,” Jarvis said in an email.

If the DOAH judge had found that the child had suffered a neurological injury, and if the 1^st DCA had upheld that decision, then the Chavezes, under the BRNI statute, would have been precluded from suing UF and Shands for medical malpractice. That “would have been a huge win for UF and Shands,” since the BRNI fund would have ended up paying the Chavezes, he said.

“But because these things did not happen, the Chavezes now get to sue UF and Shands for medical malpractice and likely will collect much more than they would have under the BRNI statute,” Jarvis noted. “This, of course, is why the Chavezes, after filing their claim with NICA, decided to drop it.”

The 41-page opinion by the appeals court, which went into a lengthy discussion of the separation of powers in state government, may have little practical importance for Shands in the Chavez case. Two days after oral arguments at the appellate court, the medical center and UF decided to drop the appeal, something 1^st DCA Judge Rachel Nordby noted in her dissent.