A proposed law being considered by the Maryland Senate is Senate Bill 798. This Bill would harm the most vulnerable (and some of the most catastrophically injured) medical malpractice victims — babies born with birth-related neurological injuries due to medical negligence and their devastated parents. This proposed Bill would create the Maryland No-Fault Birth Injury Fund (the “Fund”) that would replace a Maryland jury in determining such claims and the Bill would also severely limit the medical malpractice damages that could be recovered.
Under the proposed law, a “birth-related neurological injury” is defined as an injury to the brain or spinal cord of a live infant involving obstetrical services provided in a Maryland hospital that is caused by oxygen deprivation or mechanical injury that occurred or could have occurred during preprodromal labor or labor, during delivery, or in the immediate resuscitative period after delivery and which causes death or permanent and substantial mental and physical disability resulting in a permanent need for assistance in at least two of the listed activities of daily living.
All claims involving birth-related neurological injury would be required to be filed with the Fund. After the Fund determined the claim, the Fund would be required to forward the claim to the Office of Administrative Hearings (“Office”) for adjudication by an Administrative Law Judge (“ALJ”) during a contested hearing, after which the ALJ would determine (1) whether the claim involves an eligible birth-related neurological injury and (2) the nature and amount of compensation and benefits, if any, to be provided to the claimant.
In addition to awarding certain limited expenses to the claimant, the ALJ may also award, in his/her discretion, up to but “not exceeding $100,000, 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.” If the injured infant dies before the age of 18, a funeral payment is made but is limited to $15,000. Lost earnings for the injured infant is limited to 50% of Maryland’s average weekly wage, from age 18 through age 65.
What is the stated reason for this unfair and unjust proposed law? “Birth injuries other than a normal birth sometimes lead to claims against the hospital where the birth occurred and the attending physician and, consequently, those hospitals and physicians are most severely affected by medical liability risk and associated costs. Because obstetrical services are essential, it is incumbent on the General Assembly to provide a plan designed to result in the stabilization and reduction of medical liability risk and associated cost in order to preserve access to obstetrical services in Maryland. Birth-related neurological injury claims are among the most costly and devastating types of medical injuries and warrant the establishment of an equitable system of compensation regardless of fault.”
We ask the Maryland General Assembly considering the Bill these two critical questions: what is a more equitable system of resolving civil claims, including medical malpractice claims, than the time-honored jury system? What is “equitable” when an innocent newborn who suffered a catastrophic injury due to medical malpractice in Maryland, and his parents who have suffered a life-long, traumatic, and severe continuing loss that was not their fault, are not fairly or adequately compensated for their economic losses (such as lost earnings) and noneconomic damages, such as the unending heartache and the need for the parents to provide their child with his activities of daily living on a 24/7 basis, for his lifetime?
If you or a loved one suffered injury (or worse) due to medical malpractice in Maryland, you should promptly contact a Maryland medical malpractice attorney who may investigate your Maryland medical malpractice claim for you and represent you in a Maryland medical malpractice case, if appropriate.
Click here to visit our website or telephone us toll-free at 800-295-3959 to be connected with Maryland medical malpractice lawyers who may assist you with a Maryland medical negligence claim.
Turn to us when you don’t known where to turn.