A birth injury turns what should be the happiest day of a family’s life into a medical and financial crisis. If your child was hurt during labor or delivery in Miami, Coral Gables, Fort Lauderdale, or anywhere in South Florida, you are likely asking two questions: what went wrong, and what can we do about it?
Birth Injury Attorneys in South Florida
Florida answers that second question differently than almost any other state. For the most catastrophic birth injuries, a no-fault program called NICA — not a lawsuit — may be the required path. For many other birth injuries, a traditional medical malpractice case may be available. Which path applies is largely decided by statute, not by preference — which is why the analysis needs to start early and be done right.
Silva & Silva, founded in Coral Gables in 1992 by brothers Carlos E. Silva and Jorge E. Silva, guides South Florida families through both paths. Our medical malpractice attorneys have published results of more than $131 million in medical-malpractice recoveries, including a $70 million recovery, a $25 million arbitration award, and results of $14 million, $13 million, and $9.35 million. Past results do not guarantee a similar outcome.
How Do You Choose the Best Birth Injury Attorney in South Florida?
Families searching for the best birth injury attorney in South Florida should look past advertising and ask about substance:
- Does the firm know NICA inside and out? Florida’s no-fault birth injury program controls whether your family can sue at all. An attorney who cannot analyze NICA eligibility cannot protect your options.
- Has the firm handled Florida’s presuit process? Medical negligence cases must clear the demanding screening requirements of Chapter 766 of the Florida Statutes before a lawsuit can be filed.
- Does the firm try cases? Hospitals and insurers know which firms are prepared to go to trial.
- Can the firm serve your family in your language? Hablamos español — our team serves Spanish-speaking families throughout South Florida.
What Counts as a Birth Injury Case in Florida?
Birth injury claims generally involve harm to the baby’s brain, spinal cord, or nerves during labor, delivery, or the period immediately after birth. Two broad categories matter under Florida law:
- Catastrophic neurological injuries — brain or spinal cord damage caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period. These are the injuries Florida’s NICA program was built to cover.
- Other birth injuries — including brachial plexus injuries such as Erb’s palsy, and milder forms of hypoxic-ischemic encephalopathy (HIE). These typically fall outside NICA and may support a traditional medical malpractice lawsuit.
The line between the two categories decides which legal system your family enters, so it deserves careful analysis at the very start.
NICA: Florida’s No-Fault Birth Injury Program
The Florida Birth-Related Neurological Injury Compensation Association (NICA) was created by the Legislature in 1988 to stabilize obstetricians’ insurance costs. It is governed by Fla. Stat. §§ 766.301–766.316 and operates as a no-fault administrative system. That means a qualifying family does not have to prove the doctor or hospital did anything wrong — but it also means a qualifying family generally cannot sue. Whether an injury is NICA-compensable is not a matter of family preference: an administrative law judge — not a civil jury — makes that determination, and a compensable injury is ordinarily locked into NICA’s exclusive remedy.
One important currency note: a 2026 law (Chapter 2026-127, effective June 11, 2026) amended NICA’s exclusivity provisions, eligible benefits, family insurance requirements, and assessments — so any NICA question should be checked against the program’s current rules.
Which Injuries Qualify for NICA?
NICA’s eligibility rules are strict. All of the following must be true:
- The child was born alive in a Florida hospital.
- The obstetrical services were delivered by a physician participating in NICA — or, in circumstances defined by statute, by a certified nurse midwife practicing in a teaching hospital under a participating physician’s supervision (Fla. Stat. § 766.309).
- The child weighed at least 2,500 grams at birth (about 5.5 pounds) for a single birth, or at least 2,000 grams for a multiple birth such as twins.
- The injury is to the brain or spinal cord and was caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period.
- The injury left the child permanently and substantially impaired — both mentally and physically.
- The disability was not caused by a genetic or congenital abnormality.
Every element matters. A baby below the weight threshold, a delivery without a participating physician, or a child with a severe physical injury but no substantial mental impairment does not fit NICA’s definition — and that family’s remedy may lie in the civil courts instead, where negligence, causation, and Florida’s presuit requirements must still be proven.
NICA Is the Exclusive Remedy — With Two Principal Exceptions
For qualifying injuries, NICA is the exclusive remedy. A family whose claim is NICA-compensable generally cannot sue the physicians, hospital, and other providers directly involved in the labor, delivery, or immediate post-delivery resuscitation, no matter how negligent the care may have been.
Florida law recognizes two principal paths around that exclusivity — different doctrines with different rules. (Chapter 2026-127 also revised the program’s funding-suspension framework and its release rule: if NICA suspends acceptance of new claims for funding reasons, a person precluded from filing may pursue civil remedies.)
- Notice failure (Fla. Stat. § 766.316). Participating hospitals and physicians must give expectant mothers specific written notice of their NICA participation. The statute excuses notice in limited situations — such as an emergency medical condition or when notice is not practicable — and the duty is independent for the hospital and for each participating physician: one provider’s notice does not satisfy another’s obligation, and the legal effect of defective notice is defendant-specific. Where required notice was not given, the family may be able to pursue a civil malpractice lawsuit instead of NICA. Deciding whether valid notice was given — like deciding compensability — belongs exclusively to the administrative law judge (DOAH), even when the family is not seeking NICA compensation.
- The bad-faith election (Fla. Stat. § 766.303). A family may sue in civil court — instead of accepting a NICA award — where there is clear and convincing evidence of bad faith, malicious purpose, or willful and wanton disregard of human rights, safety, or property. The suit must be brought before and in lieu of accepting a conclusive NICA award; a family cannot take the award and then sue.
Whether either doctrine applies is often the first battleground in a South Florida birth injury case, and it is a question an experienced attorney should investigate immediately.
What NICA Pays in 2026
NICA benefits were expanded significantly by 2021 reforms, which raised the parental award from its long-standing $100,000 to $250,000, added a retroactive $150,000 top-up for families who had received the old amount, and tied the award to a 3% annual increase. Chapter 2026-127 (June 2026) changed more than one benefit line: it expanded psychotherapy eligibility (including a new post-death counseling benefit), added legal costs for establishing and maintaining a guardianship, revised transportation benefits, added Medicaid reimbursement provisions, imposed continuous family health-insurance requirements with strict deadlines, and created a release from NICA exclusivity if the program ever suspends acceptance of new claims. The headline dollar figures below carry over unchanged and should be confirmed with NICA at filing time:
- Parental award: capped at the 2026 statutory maximum of $289,818.51 under § 766.31, which rises 3% each January 1 (to about $298,513 in 2027). The award — its amount, and whether it is paid periodically or as a lump sum — is set in the NICA proceeding (§ 766.309).
- Care for the child: payment of qualifying medically necessary and reasonable expenses as they are incurred — nursing care, therapy, medications, and accessible transportation among them. Since Chapter 2026-127, the family must also keep continuous comprehensive health coverage for the child — with strict deadlines: 30 days to apply for Medicaid or 60 days to obtain other qualifying coverage, plus a further 60 days after a Medicaid denial (existing participants have until January 1, 2027). NICA compensates the cost of that qualifying coverage, premiums and out-of-pocket expenses included — but the deadlines are a condition to take seriously from the first filing.
- Housing assistance: up to $100,000 over the child’s lifetime for home modifications, moving expenses, construction, or a down payment on an accessible home.
- Mental health support: counseling benefits of up to $10,000 per year for family members and other relatives who have lived with the child — plus up to $20,000 in counseling after a child’s death, a benefit added in June 2026.
- Death benefit: $50,000 for final expenses.
The NICA Filing Deadline: By the Fifth Birthday
A NICA petition must be filed by the child’s fifth birthday — a claim filed more than five years after birth is barred (Fla. Stat. § 766.313). Families sometimes assume they have more time because their child is young — but for the NICA petition, the fifth-birthday deadline is the controlling one. And one crucial warning: that deadline is not a safe harbor. Filing the NICA petition pauses a related civil claim only from the moment of filing (Fla. Stat. § 766.306) — it does not revive a period that has already expired. Waiting years to file can let the separate two-year malpractice clock run out, destroying the civil alternative if the claim turns out not to be compensable.
NICA vs. a Civil Lawsuit: How the Two Paths Compare
Families do not simply pick a lane — compensability is determined through the administrative process, and the statute decides most of the routing. But understanding how the two systems differ shows what is at stake in that determination:
| NICA (No-Fault Program) | Civil Malpractice Lawsuit | |
|---|---|---|
| What you must prove | That the injury and delivery meet NICA’s statutory criteria (participating physician, birth weight, oxygen deprivation or mechanical injury, permanent and substantial mental and physical impairment) | That the provider fell below the standard of care and that the failure caused the injury |
| How compensation is paid | Scheduled benefits: qualifying medically necessary expenses paid as incurred, plus the parental award (2026 statutory maximum: $289,818.51) | A settlement or judgment; for minors, distributions may involve court approval, guardianship, liens, or structured arrangements |
| Limits on recovery | Structured and capped by benefit category under the plan | No general statutory cap on compensatory damages in ordinary civil litigation against private providers; strict caps apply to entities covered by sovereign immunity |
Neither system is generous by default — NICA pays defined benefits without a negligence fight, while a successful civil case can yield a larger recovery but must clear fault, causation, and Florida’s demanding procedural rules. What matters is protecting every option before deadlines and eligibility determinations close them.
Florida law also protects what families keep in a civil case: under Article I, Section 26 of the Florida Constitution, a medical-liability claimant is entitled to at least 70% of the first $250,000 recovered and 90% of any amount above that, exclusive of costs, unless the client knowingly waives that protection. Silva & Silva handles birth injury cases on contingency, with no upfront costs — the firm advances case costs, which are repaid out of any recovery.
Birth Injuries That Fall Outside NICA
Because NICA requires both substantial mental and physical impairment, many serious birth injuries stay in the civil courts, where a family can pursue full compensatory damages:
- Erb’s palsy and other brachial plexus injuries. Nerve damage that paralyzes or weakens a child’s arm is a peripheral-nerve injury, not the brain or spinal cord injury NICA covers — so it generally falls outside NICA and may be pursued as a medical malpractice claim, where negligence and causation must still be proven.
- Milder hypoxic-ischemic encephalopathy (HIE). Oxygen-related brain injury that does not leave the child substantially mentally impaired may also proceed in civil court, subject to the same proof requirements.
For these cases, Florida’s ordinary medical malpractice rules apply — including the Chapter 766 presuit process and the strict filing deadlines described below.
Deadlines for Birth Injury Cases in Florida
Deadlines are where birth injury families most often lose rights without realizing it:
- Two years from discovery. Under Fla. Stat. § 95.11(5)(c), a medical malpractice case generally must be brought within two years of when the family knew — or reasonably should have known — both that an injury occurred and that there is a reasonable possibility it was caused by medical negligence.
- Four-year outer limit. The same statute imposes a four-year deadline measured from the incident itself, subject to narrow exceptions — including an extension where fraud, concealment, or intentional misrepresentation prevented discovery, capped at seven years from the incident.
- “Tony’s Law” protection for young children. The four-year limit does not bar a claim brought on behalf of a child on or before the child’s eighth birthday. This protection is vital in birth injury cases, where the full extent of harm can take years to emerge — but it does not stop the separate two-year discovery clock, so a claim can still expire before the eighth birthday if the injury’s possible negligent cause was, or should have been, discovered earlier.
- NICA’s own deadline. For NICA-track injuries, the petition must be filed by the child’s fifth birthday (Fla. Stat. § 766.313). Filing a NICA claim also tolls the limitations period for a related civil action while the NICA proceeding is pending — but only from the moment of filing; it does not revive an expired period (Fla. Stat. § 766.306).
- The presuit process affects the math. Any civil malpractice suit first requires Chapter 766 presuit screening, and properly serving the notice of intent pauses the filing deadlines for 90 days. When the presuit period ends, the family has the longer of the remaining limitations period or 60 days to file suit (Fla. Stat. § 766.106(4)).
One more wrinkle: if the delivery happened at a hospital covered by Florida’s sovereign immunity law, Fla. Stat. § 768.28 — as public hospital systems generally are — recovery is capped at $200,000 per person and $300,000 per incident. Going above the caps generally requires a special claims bill passed by the Florida Legislature, though an entity may also settle above the caps within its available insurance coverage (Fla. Stat. § 768.28(5)). Suing a public entity also requires timely written presentment of the claim — to the agency and, for most defendants, the Department of Financial Services — under Fla. Stat. § 768.28(6) before suit. Whether a particular hospital or provider is actually covered by sovereign immunity is an entity-specific question that must be investigated case by case. A June 30, 2026 gubernatorial veto kept those caps in place, so this remains the law today.
Why South Florida Families Choose Silva & Silva
Silva & Silva has represented catastrophically injured clients from its Coral Gables office since 1992. Beyond the firm’s published medical-malpractice results of more than $131 million, the firm served on the Plaintiffs’ Steering Committee in the Champlain Towers South collapse litigation, which ended in a settlement of more than $1.2 billion for victims and their families. Every case is different, and past results do not guarantee a similar outcome.
We handle birth injury cases throughout the region, including Miami, Coral Gables, and Fort Lauderdale.
Frequently Asked Questions
What is NICA, and does my family have to accept it?
NICA is Florida’s no-fault compensation program for certain catastrophic birth injuries, governed by Fla. Stat. §§ 766.301–766.316. If your child’s injury is determined to be NICA-compensable, NICA is generally the exclusive remedy and a lawsuit is barred. But eligibility is narrow, and two statutory doctrines can open the courthouse: failure to give the required NICA notice (Fla. Stat. § 766.316, with its own exceptions), and the bad-faith election under Fla. Stat. § 766.303, which requires clear and convincing evidence of bad faith or willful and wanton misconduct and must be pursued in lieu of accepting a NICA award.
How much does NICA pay in 2026?
The 2026 plan includes a parental award capped at the statutory maximum of $289,818.51 (the amount and payment form are set in the NICA proceeding), payment of qualifying medically necessary care as incurred, up to $100,000 in lifetime housing assistance, counseling benefits of up to $10,000 per year for family members and other relatives who have lived with the child (plus up to $20,000 after a child’s death), and a $50,000 death benefit. A 2026 law (Chapter 2026-127) expanded eligible services — guardianship legal costs, Medicaid reimbursement, broader counseling — and added continuous family health-insurance requirements with strict enrollment deadlines; confirm current figures with NICA when filing.
What if my child’s injury doesn’t qualify for NICA?
Then the civil courts may be open. Injuries like Erb’s palsy or milder HIE — which do not involve both substantial mental and physical impairment of the brain or spinal cord — can be pursued as traditional medical malpractice claims, where negligence and causation must be proven and Florida’s presuit rules apply. There is no general statutory cap on compensatory damages in ordinary civil litigation against private providers.
How long do we have to take legal action?
For NICA, the petition must be filed by the child’s fifth birthday — and filing it tolls the deadline for a related civil claim while the NICA proceeding is pending, but only from the moment of filing, so the separate two-year malpractice clock can expire first if a family waits (Fla. Stat. § 766.306). For a civil malpractice case, the general rule under Fla. Stat. § 95.11(5)(c) is two years from discovery with a four-year outer limit — but the four-year limit does not bar a claim filed on behalf of a child on or before the child’s eighth birthday — though the two-year discovery clock still runs, so earlier discovery can close the window sooner. Because these deadlines interact, families should get a case review as early as possible.
Does it matter that the delivery happened at a public hospital?
Yes. Entities covered by sovereign immunity are protected by caps of $200,000 per person and $300,000 per incident under Fla. Stat. § 768.28. Recovering more generally requires a claims bill from the Florida Legislature, though an entity may settle above the caps within its available insurance coverage. Whether a particular hospital or provider actually has sovereign immunity is an entity-specific question — an attorney can tell you early whether it affects your case.
Talk to a South Florida Birth Injury Attorney — Free Consultation
If your child was injured during labor or delivery, the clock is already running — on NICA’s fifth-birthday filing deadline, on Florida’s malpractice deadlines, or both. Let us review the records and explain every option, at no cost and no obligation.
Call Silva & Silva at (305) 445-0011 or contact us online to schedule your free consultation. Hablamos español.
This page is for general informational purposes only. It is not legal advice, and reading it does not create an attorney-client relationship. Laws change, and every case is different. For advice about your specific situation, consult a licensed Florida attorney.
