“Obamacare” and the New York Medical Indemnity Fund: Where is the Outrage over Rationing Care to Innocent Children Injured by Negligent Doctors and Hospitals?

Michael W. Kessler

The United States Supreme Court recently heard arguments about whether mandatory national health insurance is constitutional. The centerpiece of the opposition to “Obamacare” is that it results in too much government control over individual health care decisions and will result in rationing of care.

One would think that if anyone in our society should be entitled to make their own health care decisions, it would be the families of children whose care was necessitated by the wrongdoing of someone else. Yet that is not the case for New York children injured at birth.

Last year the state created the New York Medical Indemnity Fund which is applicable only to innocent children whose families have successfully proven that their serious injuries at birth were caused by medical negligence of a doctor or hospital. Instead of the insurance carriers for the negligent hospital or doctor paying for the health care that their negligence caused, these children are forced–against the will of their families–into the taxpayer supported New York State Medical Indemnity Fund. The Fund-and not the families–will exclusively determine how much care these children will get, who will provide it, and even how much the health providers will be paid-even if a Court has determined that more or different care is required. Inevitably this will adversely impair the health and quality of life of these children.

This would appear to be the epitome of government controlled and rationed health care that many of the same voices who oppose Obamacare are fighting against. Yet when such care rationing is imposed on innocent children under the guise of “tort reform,” somehow the lofty principle of medical choice, and the responsibility of proven wrongdoers and their insurance companies to pay for the medical care that their wrongdoing caused, mysteriously disappears from the discussion.

And those opponents of Obamacare who purport to value and advocate for the right to life of every child, personal responsibility, and limiting public expenditures, are strangely mute about a program that uses tax funds to bail out proven wrongdoers-and even worse big insurance companies-at the expense of these innocent children.

Is this apparent inconsistency in positions because these people have failed to identify the similarity of the issues involved? Is it because only a small group of blameless children are adversely impacted, and the people who see Obamacare as a threat don’t see the Fund as a threat to them, and therefore just don’t care? Or does the disconnect occur because these people are more concerned with protecting negligent doctors, hospitals, and insurance companies, than they are with unfairness of rationing care and causing unnecessary suffering to the children that these wrongdoers have harmed?

Whatever the explanation for this contradiction, where is their outrage over the devastatingly harmful impact that the New York Medical Indemnity Fund is having on the quality of life of the birth injured children of New York? And why aren’t these patriots lining up to repeal the New York Medical Indemnity Fund, or to challenge its constitutionality with the same vigor and resources with which they are fighting Obamacare?

Michael W. Kessler is an Albany attorney who represents children who have suffered catastrophic injuries as a result of medical negligence. He is Board Certified in Medical Negligence Law by the American Board of Professional Liability Attorneys.