Disabled Individuals Cared for by New York State: A Preview of Care Under the New York State Medical Indemnity Fund?

I have previously written about the potentially devastating consequences of the creation of the New York Medical Indemnity Fund in limiting limit access to care for children who have suffered severe brain disabilities as a result of proven medical malpractice at the time of their birth. (See: New York’s Death Panel Lottery for Children Injured by Medical Malpractice at BirthNew York State To Ration Care to Brain Injured Victims of Obstetric MalpracticeChallenging the New York Medical Indemnity Fund)

In summary even though the malpractice causing an injury has been established and care needs and their costs have been proven in Court and subject to judicial review, the brain injured child and his family must apply to the State administered Fund to get approval for this care to be paid. Inevitably this will result in delays, denials, or compromises in providing the care that these malpractice victims require and have proven.

The Fund essentially functions like Medicaid, so comparisons to the consequences of such care are reasonable. Several recent studies and articles confirm the fear that access to care for these vulnerable children (and adults) will be compromised, and–because their care is controlled by the Fund they will suffer needlessly, and now, based on a study by the New York Times, that they will likely die unnecessarily and prematurely.

A study published last summer in the New England Journal of Medicine [1] established that Medicaid patients (the equivalent of Fund enrollees, since reimbursement for most services are Medicaid rates) experienced significant delays in getting appointments with medical sub-specialists as compared to private pay or private insurance company patients. The delay in getting appointments was three times as long-an average of three months compared to one month. Inevitably this leads to delayed recognition and effective treatment of problems, unnecessary suffering and perhaps death.

It is hardly surprising therefore, that recent investigative reporting discovered that developmentally disabled individuals whose care was either provided or managed by the State of New York were dying unnecessarily prematurely at an alarming rate. A November 5 th New York Times article by Hakim and Buettner entitled, “In State Care, Twelve Hundred Deaths and Few Answers” [2] describes a shocking number of unexplained deaths, most apparently related to poor care, such as choking, drowning, and other injuries to disabled individuals. The Times reports that “the average age of those who died from unknown causes was 40, while the average age of residents dying of natural causes was 54.” The State Commission on Quality of Care and Advocacy for Persons With Disabilities found that there had been “concerns about the quality of care in nearly half” of the unexplained deaths.

An editorial in the November 9, Albany Times Union [3] commented on the New York Times study noting that the State of New York was spending on average $144,000 per year per developmentally disabled person under their care (an amount that is probably lower than the Court established costs to provide adequate care to a birth injured child). Despite this, the “unexplained” death rate for individuals cared for by the State of New York was more than four times higher than the rate in Massachusetts and Connecticut. These findings, therefore, may well be a preview of what I can expect to happen when the New York State Medical Indemnity Fund is making health care decisions for these unfortunate malpractice victims instead of the families whose sole interest is to provide quality care, maximize function, and minimize suffering.

Also within the last few days, yet another article gives an indication of how care to these birth injury victims may be compromised under the Fund. Under the regulations recently promulgated, the Fund will appoint a “case manager” employed by the Fund to “manage” the enrollee’s care. This case manager is, of course, beholden to the Fund for his or her employment, and therefore has at best a mixed motivation in approving the care that the “client” may require to improve his quality of life. The Syracuse Herald reported on November 3rd that the New York State Office for People With Developmental Disabilities had “scrapped a plan to force 2,100 Central New Yorkers with developmental disabilities to replace their case workers.” [4] The fact that the State could arbitrarily replace the case manager of a person with a developmental disability is illustrative of the power that the Medical Indemnity Fund will have to do the same thing, without regard to the consequences to the patient.

These recent articles merely serve to point out and reinforce what will inevitably occur when the State, through the application of the Medical Indemnity Fund, takes the resources and care decisions necessary to best serve these innocent victims of proven malpractice, out of the hands of their families and places them under State control. This has been done without regard to the consequences that these unfortunate individuals will suffer. And it was done solely in order to bail out the insurance companies for proven wrongdoers.

Michael W. Kessler

Law offices of Sanford Rosenblum



[1] “Auditing Access to Specialty Care for Children with Public Insurance,” Joanna Bisgaier, M.S.W., and Karin V. Rhodes, M.D., N Engl J Med 2011; 364:2324-2333, June 16, 2011.

[2] http://www.nytimes.com/2011/11/06/nyregion/at-state-homes-simple-tasks-and-fatal-results.html

[3] http://blog.timesunion.com/opinion/a-deadly-system-for-the-disabled/15958/

[4] http://www.syracuse.com/news/index.ssf/2011/11/state_drops_plan_to_force_deve.html