Our children and their health should transcend politics; unfortunately, many states are waging political war on the ability of birth-injured children to recover for their injuries from doctors, hospitals and insurance companies. The losers in these battles are often the children, who may be relegated to a lifetime of inadequate care, and taxpayers, who end up footing the bill.
Some states have experimented with Birth Injury Funds. These are typically designed to be no-fault—meaning that children with brain injuries who suffered trauma during delivery are able to recover from the fund without proving that a doctor, hospital, or other health care provider was negligent. The argument is that this will increase the number of children who may receive financial benefits for brain injuries. The counter-argument is that it prevents injured children from seeking full compensation for their injuries—the funds typically only provide limited financial assistance.
Virginia, for example, has a birth-related neurological injury act, whereby doctors and hospitals who voluntarily pay into the fund can limit would-be plaintiffs in their recovery to that fund, and prevent them from filing a lawsuit in court. Those providers must inform patients at the outset of care whether they participate in the fund, and the child must have a qualifying injury (defined by statute). The decision of whether a child qualifies for payment is made by the Virginia Workers’ Compensation Commission.
Florida Birth Injury Fund
Florida also has a birth injury fund. There, doctors and hospitals pay into the fund, and an administrative law judge determines a child’s eligibility. Benefits may include expenses for therapy, medical care, special equipment and related travel expenses.
Proponents of the Fund in Maryland have pointed to specific lawsuits in legislative debate, noting that it would be impossible for the injured baby to win in some of those cases (one received a $2 million verdict in Baltimore City). The argument is that without the Fund, children will be limited in benefits to provide for their survival and well-being. Another argument for the fund is that it is necessary to prevent an insurance crisis, or to prevent obstetricians from leaving practice because of high insurance premiums. Fortunately, data from recent years in Maryland shows that medical malpractice insurers are stable, and enough obstetricians are available to would-be patients. Even malpractice insurers opposed the bill in 2015. Proposals for a birth injury fund have been made in recent years in Maryland, and they fail every year. Renewed arguments are expected in the 2016 session of the General Assembly.
Birth injury funds offer some solutions, but still leave victims limited recovery. They limit an injured child’s access to justice, and require them give up a constitutional right to have their day in court. We can help you to understand your state’s rules if you need to make a claim for a birth injury. Contact us at (440) 252-4399.
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