Maryland Birth Injury Fund Proposed By Lawmakers

Maryland legislators are attempting to create a birth injury fund to provide compensation for children and families for health problems that may be caused by medical mistakes during birth. However, the move would limit the ability of families to pursue medical malpractice lawsuits, and serve as a form of tort reform.

Dr. Dan K. Morhaim, a member of the Maryland House of Delegates representing Baltimore County, recently proposed a statewide “no fault” birth injury fund. The fund would provide compensation for care to individuals who suffered an injury during birth, while shielding medical personnel and hospitals from jury awards that could provide substantially more compensation.

Morhaim suggests that the legislation would actually result in more infants obtaining compensation, because their parents will not have to win a trial to get access to the fund.

“Under this legislation, more babies who suffer birth injuries will get the lifetime care they need because acceptance into the program is based on the injury, not the outcome of a lawsuit,” Morhaim wrote in a letter to other Maryland legislators.

Morhaim claims that the fund would help circumvent what he calls a “looming healthcare crisis” for mothers and babies in the state of Maryland. He is basing that in-part off of a Baltimore Business Journal article published in June 2013, which reported that hospitals in the area feel overburdened by the legal risks of childbirth procedures.

That same month, Maryland General Hospital closed its obstetrics and gynecology department as part of its restructuring and merger with University of Maryland Medical Center. Local hospitals claim that delivering babies is a profit loss for them, due to high insurance costs and the risk of lawsuits. That is because, in part, Maryland parents have until their child is 21 to file a birth injury lawsuit against a hospital or healthcare personnel.

Critics of the legislation point out that the bill would shield bad doctors and hospitals that provide substandard care, putting more unborn children at risk of birth injuries. They maintain that efforts should be focused on preventing birth injuries through improved medical care, rather than providing negligent doctors and hospitals with immunity from the consequences of their poor care.

Eligibility for the Maryland birth injury program would be restricted to children born in a Maryland hospital, whose injuries fit the definition of a birth-related neurological injury. An administrative law judge would make the eligibility determination and there would be an appeals process in place. Once approved, the child and their parents could see compensation and care from the fund in under 90 days.

The fund would include a one-time award of up to $100,000, plus lifetime medical care, lost earnings compensation for the years 18 to 65 and no cap on the health care benefits. Each case would be reviewed by the Maryland Department of Health and Mental Hygiene and the Maryland Board of Physicians, who would review hospitals and doctors, respectively, for indications of substandard care.

The program would be funded in its entirety by hospitals and doctors, Morhaim claims. Johns Hopkins Hospital and the University of Maryland Medical System have already thrown their support behind the bill.