NEW NE WS TO GET A SHOT AT JUSTICE, THIS FAMILY WAS FORCED TO PROVE THEIR DISABLED DAUGHTER’S INTELLIGENCE.
depriving them and their children of services and support — from wheelchairs to modified vans to therapies that could improve their children’s lives. The law, designed to reform the program, significantly improves benefits for families. Ashley Grant could escape NICA and sue the doctor, potentially for much more than what NICA would pay, but only if she could prove that Brooklyn was cognitively whole. When cases involving major birth injuries go to court, they can and often do generate millions. “Brooklyn on paper is not who she is. She is very intelligent,” Grant said of her daughter, who turned 8 in April. “She To qualify for Florida’s NICA program, infants must suffer “substantial” damage to shows you who she is by getting to know her. And you’re never going to see that on paper.” Grant said it hurt to see the grillboth body and mind. Though her body was broken, Brooklyn Grant’s mother and ing over her daughter’s disabilities by a man who appeared to know little of Brooklyn’s struggles and triumphs. teachers knew she was smart. This is how they stood their ground — and won. “Obviously, it is devastating,” she said. “It didn’t matter to BY CAROL MA RBIN M I L L ER A N D DA N I EL C HA N G , MI A MI H E R A L D/ P R O P U B L I C A NICA. ... They don’t know who your child is. You can argue until you’re blue in the face. But they want to hear what they t is homework time at Ashley Grant’s house on a tidy, tree- can try to impose a measure of accountability on their doctor want to hear, and that’s it. They didn’t hear us telling them how intelligent she is.” So, she had to prove it. lined street here. Grant places six crayons on a countertop. by pursuing a lawsuit. Those who want out of NICA sometimes meet M. Mark Her daughter, Brooklyn, still wearing her red school polo, sits in her wheelchair. She looks directly at a video camera Bajalia, a lawyer for NICA and part of the legal and emotional he quiet is pierced by giggles and a high-pitched primal gantlet they must successfully navigate. He has represented and smiles. scream. Brooklyn doesn’t like physical therapy. “Four plus one is five,” says Kyle Stromquist, Grant’s boy- NICA in administrative court dozens of times, making him She is wearing high-top sneakers in her trademark hot one of the program’s most prolific attorneys. pink. Stromquist, Grant’s boyfriend, fastens orthotic braces friend. “What about four plus two? How many is that?” On Dec. 3, 2018, Bajalia came to Cambridge Elementary on top with velcro. The braces — pink, of course — have been Brooklyn stares with purpose at a computer tablet displaying words and images and letters. As her hazel eyes gaze at the School — then Brooklyn’s school — to depose her teachers customized, decorated with ice cream cones, donuts, stars and and therapists, who had reported that she was, as Rush said, unicorns. Precious as they may be, the braces leave marks on screen, the device gives voice to her answers. “smart.” Under the law, Brooklyn’s neurological injuries at her legs, especially after therapy. Six, says the tinny, computer-generated voice. birth had to “substantially” harm both body and mind in order Brooklyn wobbles on rubbery knees, gamely trying to stand “Bam!” Stromquist shouts. “Good!” for her to be accepted by NICA. upright, even for 10 seconds. Brooklyn straightens in her chair and beams. Bajalia had never laid eyes on Brooklyn. And yet to the staff Stromquist, a Cape Canaveral firefighter and a father figure Brooklyn’s determination to learn is no surprise to the teachers who have observed her grit and resolve. They have and teachers he interviewed, it seemed he was suggesting that for Brooklyn, grips her tiny hands in his to steady her and speaks tenderly as he puts her through the grueling routine: come to embrace what her mom fought long to prove: that they were embroidering her mental abilities. “It’s your testimony as you sit here today that [Brooklyn] “Look at me. Look at me. Look at me. Look at me.” inside that broken body is a nimble mind. “Lean forward like you’re giving Daddy a hug. ... If you want “She’s smart,” Karen Rush, Brooklyn’s former special edu- does not have any cognitive or intellectual impairment?” the cation teacher, said during videotaped testimony. “Never lets lawyer asked Rush. He was seeking to judge Brooklyn by to walk one day, this is how you’re going to have to do it.” anything stop her.” Not her disability. Not the expectations standardized test scores, not by what her family and teachof strangers. And not the lawyers for a state-created program ers knew by being with Brooklyn and watching her develop rooklyn betrays no bitterness that her vibrant mind is who fought for two years to persuade a judge that Brooklyn’s alongside her peers. trapped inside an uncooperative body. As digitized voice mind was as damaged as her body. As Bajalia fired off pointed questions, the teacher had an technology advances, perhaps she will someday be able to What Brooklyn’s mother sought was the chance to file a epiphany: While Rush and the other educators, therapists and discuss “hypoxic-ischemic encephalopathy” — one of her malpractice lawsuit against the medical providers who she aides marveled at Brooklyn’s resilience, Bajalia seemed to her diagnoses — even if she cannot physically overcome it. believes made serious errors during Brooklyn’s birth. Such to see only the child’s flaws. “You just want me to say what you The sight of her in her wheelchair is jarring: That little body suits are severely curtailed in Florida under the 1988 law that want me to say,” she snapped. in a big person’s machine. Bajalia did not respond to phone calls and an email from the created the Birth-Related Neurological Injury Compensation Brooklyn recently arrived home from school, her bright Association, or NICA. Miami Herald. Reporters also asked a NICA administrator to hair pulled back in a ponytail. Her hazel eyes danced over the NICA uses money from assessments paid by doctors and pass along a request for comment. computer screen. Juice, said the artificial voice. Brooklyn was hospitals to offer parents like Grant an upfront payment and NICA was Florida’s answer to obstetricians’ complaints thirsty. She asked to sit on her mom’s lap. the promise of “medically necessary” care for the rest of a about the cost of malpractice insurance. Only one other state, It shouldn’t have been this way, her mother said. It didn’t child’s life. Grant believed her daughter had not suffered the Virginia, has a similar program. have to be. severe cognitive disabilities necessary to qualify for the proSince NICA’s inception, families received a one-time Grant was 23 and healthy, working full time as a sales gram. To get her day in court, Grant would have to prove her $100,000 payment and a promise of lifelong care that was associate for Bath and Body Works. Her pregnancy had been daughter’s intelligence. The legal battle over whether NICA “medically necessary” and “reasonable,” as determined by the uneventful. She expected to deliver at Wuesthoff Medical, could shield Brooklyn’s doctor and hospital from all liability program. In exchange, families could not sue the doctor or now called Rockledge Regional Medical Center, a 298-bed hospital. Aside from annual premiums — obstetricians paid hospital just southwest of the Kennedy Space Center. Dr. Hae would last 836 days. There is a perverse irony at the root of NICA. Hundreds $5,000 and hospitals contributed $50 per live birth — the med- Soo Lim — a 1993 graduate of the University of Florida’s mediof parents facing financial ruin desperately want to get into ical providers paid nothing; the costs were borne by the fund. cal school, whose obstetrics residency was at the University NICA accumulated nearly $1.5 billion in assets. the program but can’t because the circumstances of their of Miami — handled the delivery when Grant’s water broke Gov. Ron DeSantis signed a bill into law last week to about 4 a.m. on April 1, 2013. child’s birth don’t fit the precise parameters. Maybe their son or daughter weighed 5 pounds, 4 ounces, instead of the increase the one-time payment to $250,000 after a series of Doctors estimated Grant had been pregnant for about 39 minimum 5 pounds, 5 ounces. Others, mostly those whose reports by the Miami Herald and ProPublica documented weeks, making it a full-term delivery. She was given a drug children have the most severe disabilities, want out so they how some parents felt NICA was hoarding money while commonly used to speed up contractions and hooked up to
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ORLANDO WEEKLY ● JULY 14-20, 2021 ● orlandoweekly.com
