Would No-Fault Birth Injury Fund Save Money or Violate Patient’s Rights?

A wise man once said the definition of insanity is doing the same thing over and over and expecting different results. Opponents of Maryland’s proposed no-fault birth injury fund probably feel that the description fits for the legislation in support of the fund, which the Maryland Reporter says has been introduced for the third time in three years.

Proponents of the bill, of course, would say otherwise. They believe that establishing a fund that would provide lifetime care for babies born with birth-related neurological injuries would give families an alternative to costly birth injury lawsuits and drawn out legal battles, while at the same time protecting a mother’s access to obstetrical care.

“Maryland’s medical environment has worsened significantly over the last handful of years as a result, in part, due to several large awards in birth injury cases,” Maryland Hospital Association President and CEO Carmela Coyle said. “Maryland hospitals and doctors and other providers are, in fact, deeply concerned that if the environment continues to worsen, access to care, in fact, will be reduced. We need a birth injury fund to address that threat.”

The plan is modeled after similar legislation already in place in Florida and Virginia. One of the main arguments against the proposed fund is the exorbitant costs that would likely be associated with it. According to the Department of Legislative Services, hospitals would need to pay an increasing amount, from $3.1 million in 2018 to $7.8 million by fiscal 2021, in order for such a fund to exist.

That might not actually be the case, though. Trial lawyer David Wildberger noted that that actual language of the bill places the burden of the proposed fund squarely on the taxpayers’ shoulders. It would also technically violate the newborn child’s constitutional right to a trial by jury.

“By and large, these funds create tremendous injustice for the babies who are injured by medical malpractice,” said Joseph Lichtenstein, a prominent medical malpractice attorney in New York. “They often remove all accountability for the doctors and hospitals for their errors, transferring this burden to taxpayers.

“At the same time, they generally prohibit any recovery at all for the pain and suffering and loss of quality and enjoyment of life suffered by the baby, whose life may be ruined before it starts. These funds generally only pay for medical bills, and each bill is subject to a review to determine necessity — a bureaucrat deciding what the baby needs. Aside from the obvious and substantial injustice to the injured babies, if doctors and hospitals are not held accountable for negligence and malpractice, the quality of care falters, and everybody who requires health care is put at greater risk.”

The fund would be a great relief to parents and families thrust into an otherwise unexpected emergency-type situation they’re probably not prepared for. But it would also take most, if not all, of the accountability off the doctors involved — a point opponents also find troubling.

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