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Judge says parents of kids with neurological injuries ill treated

Noemi Rodriguez, 17, at home in Tampa with her sisters, Wanda Perez, 4, left, and Julia Perez, 3, and her mother, Magdalena Rodriguez.

BRIAN CASSELLA | Times

Noemi Rodriguez, 17, at home in Tampa with her sisters, Wanda Perez, 4, left, and Julia Perez, 3, and her mother, Magdalena Rodriguez.

TAMPA — Since 1989, children who sustain severe brain or spinal cord injuries during birth in Florida have been eligible for lifetime benefits aimed to ease the burdensome cost of their care.

But in a new class action lawsuit, a pair of Tampa Bay area parents claim they and others haven't received the full compensation they're owed for tending to the needs of their handicapped children.

The Hillsborough County judge who certified their class action status late last month seems to agree.

Circuit Judge Sam D. Pendino hasn't ruled on the merits of the claim against the Florida Birth-Related Neurological Injury Compensation Association, which distributes funds for a wide range of needs deemed medically necessary and reasonable. Yet in his order, the judge cited evidence of the agency's refusal to pay some parents in full.

"For purposes of class certification, this evidence all tends to demonstrate that piecemeal litigation by individual parents on a case-by-case basis will not stop or deter NICA from continuing to engage in the alleged conduct of misinforming and underpaying other parents and guardians in the class," he wrote.

The agency's top official said Tuesday that it hasn't knowingly shorted any families. She took issue with the judge's order, saying there are "tremendous problems" with it.

"If they needed additional care or compensation, they should have asked for it," said executive director Kenney Shipley. "This whole lawsuit, I think if you look behind it, I think that it's more attorney driven."

Indeed, Tampa attorney Richard Gilbert has spent years fighting the organization for payments to clients whose children suffered catastrophic neurological injuries at birth, whether from oxygen deprivation or mechanical injury during labor or delivery.

The program was designed as an alternative to costly malpractice lawsuits. It provides funds for services not covered by Medicaid and insurance on a no-fault basis and without litigation, things like extra wheelchairs, therapies and handicap-accessible vans. Currently, 115 children are receiving funds, Shipley said.

Gilbert said he decided to pursue the class action after learning that many families are legally entitled to more benefits than they have received.

He said the agency paid for professional nursing care for children born between Jan. 1, 1989, and June 6, 2002. But if parents quit their jobs to stay home and provide that care themselves, the association refused in some instances to compensate them — despite a law that requires it.

The agency pushed to get the law changed in 2002 out of concern that paying for parental care would deplete its funds, Gilbert said. It gets its money from assessments on hospitals and doctors.

Family members can now be compensated for up to 10 hours per day. A family member who was not previously employed is paid the federal minimum wage; someone who leaves a job to provide the care gets more.

Gilbert contends parents of children born before June 2002 should be compensated for all the hours of custodial care they provided. Both families named in the lawsuit, which could eventually include a couple of hundred plaintiffs, now receive payment for 40 hours of care a week. But their children need around-the-clock attention, Gilbert said.

One couple, Joseph and Lisa Basey of Hudson, claim in the lawsuit that officials repeatedly told them between January 1999 and February 2001 that the program could not pay for any of the residential and custodial care they provided to their disabled daughter.

Magdalena Rodriguez of Tampa, the other parent named in the lawsuit, considered it "a rescue" when the agency agreed to pay for up to 40 hours a week to allow her instead of a stranger to care for her daughter Noemi, who has cerebral palsy.

It also pays for 17-year-old Noemi's pool therapy. The program's employees have always treated them well, the mother said. "They've been helpful."

More appreciative than combative, Rodriguez doesn't sound like the typical plaintiff.

All she really wants, she said, is for a judge to clarify how the law applies to her.

Colleen Jenkins can be reached at cjenkins@sptimes.com or (813) 226-3337.

>>FAST FACTS

Basics of the plan

In Florida, children who suffer certain catastrophic brain or spinal cord injuries at birth are eligible for lifetime benefits that cover actual expenses for necessary and reasonable care, services, drugs, equipment, facilities and travel, unless otherwise provided by the government or private insurers. The plan is available only if there has not already been a lawsuit settlement.

Judge says parents of kids with neurological injuries ill treated 09/09/08 [Last modified: Tuesday, September 9, 2008 11:27pm]

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