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The Maryland Birth Injury Fund – A Raw Deal for Children Injured by Medical Malpractice

Posted in Attorney Blogs,Birth Injury,News on February 23, 2015

Earlier this year, a task force generated by the General Assembly has issued a report recommending that the State of Maryland create a so called “birth injury fund” to help babies injured during birth. This appears to be the latest ploy by the insurance industry to deprive patients and consumers of their right to seek just and adequate compensation through the court system.

In essence, the birth injury fund would provide some sort of a financial payout to children with birth injuries. The proposal envisions a no-fault fund. Payments would be made regardless of whether the injury was caused by medical negligence. Hence, the proponents of the fund suggest that more children would receive compensation than in the status quo. But, how much and for what injuries? Who would decide whether a child should receive compensation and how would such decisions be made?

Here are 5 reasons why Marylanders should reject the birth injury fund:

1. Bias.

The recommendation comes from a task force made entirely from representatives of the health care industry. Why were there no patient advocates, members of the community or any parents of children with birth injuries? Was the recommendation subjected to any meaningful debate and balanced discussion? The cynic in me doubts it.

2. Inadequate Compensation.

Proponents of the fund suggest that it will help reduce hospital costs associated with medical malpractice litigation. Yes, this is precisely what the fund will do. Hospitals will spend less because they will not be required to compensate injured children for all the injuries. This is the real rationale for having the fund. In almost all birth injury cases, the injured child is entitled to recover damages for past and future medical expenses, attendant care, lost future income, and pain and suffering among other things. The fund will undoubtedly place limits on the amount of compensation and the type of compensation permitted. Simply put, injured children will not be made whole.

3. Bureaucratic Inefficiency.

In the current system, the parties litigate, retain experts and subject their claims to very strict scrutiny by experts, attorneys, judges and then juries. A litigant’s claim for damages must be clear, defined and supported by experts in multiple specialties ranging from medicine to vocational rehabilitation, life care planning and economics or finance. The truth is that a bogus claim almost never survives the litigation process. But, who is going to make determinations about damages in a system with a birth injury fund? Insurance providers and risk managers who have an inherent interest in reducing a litigant’s compensation? A bureaucrat with no legal or medical training? In order to envision what is proposed, think of dealing with the motor vehicle administration or, for that matter, any other inefficient bureaucracy.

4. No Jury Trials.

While it is not perfect, the jury trial system is the best system we have for resolving disputes. This is particularly true in cases of medical malpractice. Civil litigation, as it exists today, evolved and changed over many centuries to become very efficient at limiting compensation for only meritorious claims. A medical malpractice claim is subjected to multiple filters to insure that only the soundest claims make it to a jury. In Maryland, a litigant must first find a health care provider who is supportive of the alleged malpractice claim. The claim is first filed with the Maryland Health Care Alternative Dispute Resolution Office. Then, the claim is filed and litigated in a trial court. Strict evidentiary and procedural rules govern this process. Only the strongest and fittest claims survive. Assuredly, if Maryland adopts a birth injury fund, the fund will become the exclusive remedy for a child injured by medical negligence. Injured children will not be able to avail themselves of our legal system, leaving critical compensation determinations in the hands of self-interested bureaucrats and health care providers.

5. A Shield for Bad Doctors.

An essential component of the proposed birth injury fund is that it will operate on a no-fault basis. Somehow, a child who ends up having a birth injury will receive some compensation regardless of whether the injury is the product of malpractice. As such, determinations about whether the injury is the product of medical negligence become secondary if not altogether irrelevant.

The fund will assuredly produce a chilling effect on peer reviews and litigation designed to expose and to punish health care providers who render bad care. In the current system, if a lawsuit is filed, a health care provider’s actions are usually reviewed by his or her employer.

During the litigation process, the provider’s actions are further reviewed by risk management committees and experts retained by the parties. Judges and then juries are also involved to assess whether a health care provider acted negligently.

If a health care provider is ultimately found liable, a verdict again him or her is forever recorded in court records to serve as notice to future patients. The verdict is also reported to the insurance carrier, which may lead to increased premiums or a denial of medical malpractice coverage. The verdict is also reported to the Maryland Board of Physicians.

The Board can undertake further review and even disciplinary action against the health care provider. The no-fault birth injury fund is likely to eliminate all these checks and balances to shield incompetent health care providers from responsibility and accountability. The net effect of the proposed system is that incompetent health care providers will continue to render inadequate care to infants in this State.