When a child receives a traumatic brain injury during birth due to a medical professional’s negligence, the parents’ worlds are shattered. Parents of newborns who experience traumatic brain injuries will watch their child experience a wide range of psychological, physical and cognitive disabilities. Many of these disabilities are long term and could also include seizures or spasticity issues, such as cerebral palsy. Their perfectly beautiful child was injured and will likely need special care for the rest of their life due to medical malpractice.
Currently, parents with a newborn child who sustains a brain injury may file a claim for medical malpractice and hold the doctor responsible for ruining a child’s life in court. However, hospitals are pushing Maryland legislatures to take that away.
Recently, Maryland legislative hearings debated whether it would revoke access to a jury trial for families of newborns, regardless of the extent of the child’s injury or the gravity of the hospital’s wrongdoing. Rather, to be compensated for the damage to their child, parents would be directed to a state fund, which the hospital would naturally oversee.
The money from this fund will likely be derived from a hospital surcharge that is determined by its obstetric revenue. This means all patients will ultimately be charged a tax to compensate for the hospital’s negligence. New York passed similar legislation four years ago and has found the state fund used to compensate parents was not only lacking, it had a ceiling. Too many children were added to this fund and, since it wasn’t sustainable, no new patients were allowed to benefit from the fund until more money was raised (by the patients) the following year.
Here’s how the law will work. Parents will still need to either attend a trial by jury or receive a settlement from the hospital before being able to access the state fund. This means families will still need to put time and effort towards the legal representation a normal medical malpractice claim would require. However, they’re not going to see very satisfying results. It is likely the fund will not cover future medical expenses for the child. Instead, families will have to file to be reimbursed. As the state fund begins to deplete, the quality of care will likely recede and children may be relocated to less expensive care facilities, as was the case in New York.
Maryland hospitals are throwing everything they’ve got into this bill, including push polls showing supposed widespread support for this bill and buckets of money put towards media campaigns. The fact is these families are already going to face unimaginable challenges due to the hospital’s misconduct and hospitals are trying to weasel out of taking responsibility. In so doing, they are further subjecting newborns (who are already victims) to substandard care. Moreover, this bill raises fundamental concerns about whether the legislation violates the constitutional rights of families. Hopefully, it will not pass.
Koonz, McKenney, Johnson, DePaolis & Lightfoot, L.L.P. is a personal injury firm that helps victims of medical malpractice in Washington, D.C., Greenbelt, Maryland and Fairfax, Virginia.