HB 1347 was introduced in the Maryland General Assembly during the current 2017 Session, which is entitled “Maryland No-Fault Birth Injury Fund,” that would establish a system for adjudication and compensation of claims arising from birth-related neurological injuries, which would cost Maryland taxpayers $3.1 million in Fiscal Year 2019 for staffing associated with establishment of the fund, per diem expenses for board members, required actuarial and audit reports, pamphlets to alert patients and obstetricians about the fund, initial payments to claimants, and staffing and administration costs for the Maryland Patient Safety Center (MPSC). The expenditures for the fund would increase to $7,802,700 in Fiscal Year 2022.
The proposed new law would apply to births occurring on or after January 1, 2019. The rights and remedies under the bill exclude and supplant all other rights and remedies of the infant, personal representative of the infant, and parents, dependents, or next of kin of the infant arising out of or related to the injury to the infant, including claims of emotional distress related to a birth-related neurological injury to an infant.
The bill defines “birth-related neurological injury” as an injury to the brain or spinal cord of a live infant born in a Maryland hospital that (1) is caused by oxygen deprivation or other injury that occurred or could have occurred during labor, during delivery, or in the resuscitative period after delivery and (2) renders the infant permanently neurologically and physically impaired. A “birth-related neurological injury” does not include a disability or death caused by a genetic or congenital abnormality.
How The Fund Would Work
A claimant must file a claim to receive compensation and other benefits from the fund. Within 45 days after filing a claim, the claimant has to provide additional specified information relating to the claim. The fund must then provide copies of claim materials to all health care practitioners known to have been present at the birth and the hospital at which the birth occurred within 10 days after receipt of a complete claim.
The fund has to investigate a claim upon receipt and serve the claimant with its response within 90 days. That response must indicate whether the fund determines that the injury alleged is a birth-related neurological injury. The fund has another 10 days within which it must submit the claim, all materials submitted by the claimant, and its response to the Office of Administrative Hearings (OAH) for adjudication and to the Office of Health Care Quality (OHCQ), the State Board of Physicians (MBP), and the State Board of Nursing (BON) for their review. OHCQ, MBP, and BON may investigate a submitted claim and take appropriate action with respect to the health care facility, physician, or nurse who provided care, respectively.
Each determination of eligibility and for compensation and benefits must be delegated to OAH for adjudication and decision by an administrative law judge (ALJ). OAH must set the date for a hearing on a contested case no sooner than 60 days and no later than 120 days after the written notice of the fund’s submission of a claim. If OAH determines an infant has sustained a birth-related neurological injury, the claimant may be awarded one or more benefits and compensation to be paid or provided from the fund. An OAH decision constitutes a final decision for the purposes of judicial review, and a party may seek judicial review of a final decision under the Administrative Procedure Act. A petition for judicial review stays enforcement of the final decision.
Limitations On Economic And Non-Economic Damages
An infant may be awarded: (1) actual lifetime expenses for qualified health care costs, limited to reasonable charges prevailing in the same community for similar treatment of injured persons when the treatment is paid for by the injured person, excluding specified expenses; (2) up to $500,000, payable in periodic payments or as a lump sum to the injured infant or to the parents or legal guardians of the injured infant for the benefit of the injured infant; (3) loss of earnings to be paid in periodic payments beginning on the eighteenth birthday of the infant; alternatively, a funeral payment of $25,000 is awarded if the infant dies before age 18; and/or (4) funding for reasonable expenses incurred in connection with the filing and prosecution of a claim to assert eligibility and for compensation and benefits (including reasonable attorneys’ fees on an hourly basis, subject to the approval and award of the ALJ). An award of expenses requires the immediate payment of expenses previously incurred and that future expenses be paid as incurred.
How Often Do Birth-Related Neurological Injuries Occur In Maryland?
Maryland can anticipate that a qualifying birth injury occurs in roughly 1 out of every 10,000 live births. According to DHMH’s 2015 Vital Statistics Annual Report, there were 73,544 live births to Maryland residents in 2015. Thus, approximately seven qualifying infants are born each year. As claims may only be made for births occurring on or after January 1, 2019, only four valid claims are presented in fiscal 2019.
Prior Efforts To Establish A No-Fault Birth Injury Fund In Maryland
SB 513 of 2016, a similar bill, received a hearing in the Senate Judicial Proceedings Committee, but no further action was taken. Its cross file, HB 377, received a hearing in the House Health and Government Operations Committee and in the House Judiciary Committee, but no further action was taken. SB 585 of 2015, another similar bill, received a hearing in the Senate Judicial Proceedings Committee, but no further action was taken. Its cross file, HB 553 of 2015, received a hearing in the House Health and Government Operations Committee and in the House Judiciary Committee, but no further action was taken. Similar legislation was also introduced in the 2014 session.
Current Maryland Law On Non-Economic Damages
For medical malpractice actions, the cap on noneconomic damages was set at $650,000 for causes of action arising between January 1, 2005 and December 31, 2008, increasing by $15,000 each year beginning on January 1, 2009. For causes of action arising in 2017, the cap is $785,000. The cap applies in the aggregate to all claims for personal injury and wrongful death arising from the same medical injury, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants. However, if there is a wrongful death action in which there are two or more claimants or beneficiaries, the total amount awarded may not exceed 125% of the cap, or $981,250 in 2017.
What Should You Do If You May Have A Birth-Injury Medical Malpractice Claim?
If you or a loved one suffered a birth injury in Maryland or in another U.S. state, you should promptly find a Maryland birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you in a birth injury case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find birth injury attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.