New York State to Ration Care to Brain Injured Victims of Obstetric Malpractice

Children in New York State who have been severely injured by proven medical malpractice at birth can no longer recover the cost of their future care from the insurance carriers of the negligent hospital or doctor who caused the injury. Even more importantly, starting on October 1, 2011-the victims of proven malpractice- birth injured children and their families- will no longer be able to control health care decisions recommended by their doctors and therapists. Instead the care and services that these children receive, and even who will provide it, will be decided by the State of New York under its New York Medical Indemnity Fund.

Based on the Emergency Fund Regulations recently adopted, it is clear that in many instances these children will be deprived of care that they critically need. This is so, despite the fact that a Court has already determined that such care is required and that the doctor or hospital was negligent and caused the injury.

The new law foists off the obligation to pay for the harm caused by negligent doctors or hospitals on the Fund. It is financed by a combination of the taxpayers, and cruelly, by a tax on obstetric services provided by hospitals. So instead of malpractice insurance carriers paying for the harm that their negligent insureds have caused, and for which they are receiving premiums, the taxpayers and the malpractice victims themselves will be paying for the injuries that were inflicted on these innocent children. And even then-and even worse–these families won’t control the care that these children will get.

This is not a “no-fault” system. To the contrary, under the Fund legislation, birth injured children will still have to hire a lawyer and expert witnesses, and incur the substantial expense of provingin Court that (1) the doctor or hospital was negligent; (2) that such negligence caused a significant injury to the child; and (3) the nature and extent of the harm caused, the type of future care required and the cost of providing it. Only after these three elements are each established, and subjected to review by the trial Court and on appeal, does the Fund become applicable.

Despite the findings of liability and causation, the obligation of the wrongdoer and its insurance carrier to pay for future care is obliterated, and the Court’s finding of the nature and extent of care required is completely ignored and becomes entirely irrelevant. Instead, future care costs will be solely determined anew by the State’s Fund-without regard to the finding of the Court, the family’s wishes, or the child’s needs as determined by his or her physician.

In many critical areas prior approval from the Fund Administrator is required, and in others, under the current regulation, services simply won’t be provided. Other than for physicians, providers such as nurses, therapists, and aides are compelled to accept Medicaid payment rates. Since many such providers will not work for these artificially low rates, there will undoubtedly be a lack of access to critical services- even if the Fund approves them as necessary!

A denial of services by the Fund administrator can be appealed, but that will require the family to incur the legal expense and hire witnesses to reprove what they had already successfully proven in court! A family will inevitably be in a state of perpetual litigation merely to get something close to what they were already determined entitled after a contested hearing.

It is beyond the scope of this short note to identify all of the problems for the families of birth injured children that this legislation has created. The full ramifications of the Regulations are being evaluated. Suffice it to say however, that this legislation is grossly unfair to these children who have already been victimized by negligent doctors or hospitals.

It will impair their access to quality care, impair the quality of life of these children and their families, and even shorten their lives. Further articles will comment about specific issues with the Fund and how the regulations will make life even more difficult for children injured at birth. In the meantime please make your feelings known about this terribly unfair law and contact me to discuss what you can do to help change it.

Michael W. Kessler