The Birth Injury Fund Is a Very Bad Idea

For many years, hospitals and their insurers have been trying to convince Maryland legislators to create a No-Fault Birth Injury Fund for families whose children sustained an injury during birth. They have increased their efforts this year with a public relations campaign that is scamming the public. The purpose of the fund, according to a stacked state-created task force made up almost exclusively of members of the health industry, is to provide lifetime care to babies suffering from neurological injuries that occurred at birth. However, a Birth Injury Fund actually strips away fundamental rights of the babies and their families while granting doctors and hospitals immunity from suit. The Fund is flawed and actuarially unsound.

The problems with forming a birth injury fund

First, the Fund takes away fundamental civil rights of babies born with a neurological injury. The United States and Maryland Constitution protects everyone’s right to bring suit against negligent parties and hold them accountable for their actions. The Fund only helps health care providers, as they will be able to avoid going through the civil justice system. Parents will be unable to get fair compensation for their children that the courts can provide, as they will be forced to take the amount that the Fund will give them. Families will still need a lawyer to help them get these minimal funds.

Second, health care providers will no longer be held accountable for their negligent actions and the harm they have caused. Court records are public, and families thinking about where to obtain obstetrical care will have less information when deciding which health care provider is safest for them, because the matter will be settled outside of court. Providers therefore will face fewer repercussions as their mistakes are hidden from the public. Bad doctors will continue to cause harm.

Third, small businesses and families will be forced to pay for this expensive program. A conservative estimate requires the Fund to require new revenue of about $750 million annually to be actuarially sound. Health insurance costs would be increased for small business and families in order to afford the program. That is an extraordinary amount of money to raise for the average six babies a year injured by malpractice that this Fund aims to help.

Finally, the Fund is attempting to fix a problem that doesn’t exist. According to the Association of American Medical Colleges, Maryland is second in the country among all states in the number of active physicians per capita. Maryland physicians already enjoy a stable market for medical malpractice insurance and a system that prevents frivolous lawsuits.

In the end, creating a birth injury fund may remove all personal responsibility from the doctor whose negligence or incompetence contributed to the injury of your child. Accountability matters and a program like this will take that accountability away.

Plaxen Adler Muncy, P.A. provides comprehensive representation to victims of negligence throughout Maryland. To schedule a free consultation with an experienced birth injury attorney, please contact us. We can help.

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