Proposed Law Could Make Birth Malpractice Cases More Difficult

Injuries caused by medical malpractice can be devastating and catastrophic. But they can be even more so when they involve the catastrophic injury or even death of a newborn. Despite this, Maryland is actually trying to pass laws that would make it harder to sue for malpractice related to birth injuries.

Proposed Law Sets Up Injury Fund

The bill seeks to set up a fund into which hospitals would pay for living expenses for babies that suffer neurological injuries at birth. About $25 million yearly would be paid into the fund.

On the surface, this seems like a great idea. But it’s not.

First, $25 million is only calculated based on the assumption of seven babies needing the funding every year. That’s right–in all of Maryland, with all the babies born, the hospitals are assuming only seven would suffer neurological injuries at birth.

And, assuming that was an accurate number, that works out to only $3.5 million per child. That sounds like a lot. But with a neurologically injured child, a lifetime (say, 70-80 years) of in-home medical care, medications, special schooling, and loss of income, and factoring in inflation, will far exceed that number. And that’s only calculating the economic costs, not the non-economic damages, such as loss of enjoyment of life, pain, trauma, etc.–or, the trauma to parents, especially of children who, because of their injuries, may not live to adulthood.

Goal is to Quell Malpractice Suits

The fund wouldn’t necessarily just be payable to those injured by malpractice, but could be obtained even by those who suffer injury without any negligence. Lawmakers say that it would make compensation fairer, instead of forcing families to file malpractice lawsuits, which they call “lotteries.”

It is not clear yet whether the fund would necessarily prohibit malpractice lawsuits from being filed, but that seems to be the intent. Naturally, lawmakers cite rising malpractice insurance costs and “mega-verdicts” as the reason the law is needed. They contend that many malpractice lawsuits could be avoided, if families could just obtain fund money.

That position, of course, assumes that the fund is sufficient to fully compensate for damages – which it isn’t. It also assumes that any administrative hearing to obtain fund money would be accessible and fair to victims, even without an attorney – another far-fetched assumption.

Many are also concerned about accountability. Doctors who commit malpractice would no longer be subject to malpractice claims, and because the system would be “no fault,” there would likely be no hearing or finding of liability or fault. Many victim advocate groups see this as giving a free pass to doctors to commit malpractice, without accountability, and without having to pay the bill for damages.

The law is only in the proposal stage. A similar proposal failed last year, but the idea is gathering more support as time goes on.

Medical malpractice can involve catastrophic injury and complex medical testimony, and may be emotionally difficult. Make sure you have attorneys that understand the laws that protect you, and understand the personal toll that your injuries have caused your family. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.