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More study needed on birth injury bill [Editorial]

Maryland's litigation-based system for compensating families whose children suffered from birth-related neurological industries doesn't work well for anyone. It isn't great for the families, who only get the financial assistance they need if they can convince a jury that health care providers were negligent — and only then after years of litigation and expensive attorney's fees. Doctors and hospitals are faced with the risk of skyrocketing malpractice premiums as a result of jury awards that have recently run into the tens of millions of dollars. And the public faces the reality that bad doctors often don't face discipline, and sub-standard hospital practices often don't change except as a result of malpractice judgments.

Del. Dan K. Morhaim, who is a doctor, and Sen. Catherine Pugh are leading an effort backed by several hospitals and physician groups to devise a new, no-fault system for handling such injuries. Modeled after efforts in Florida and Virginia that have been in effect for more than two decades, the legislation would create a fund that would offer compensation for children who suffered neurological injuries during birth regardless of negligence. Litigation would only be allowed in cases in which the doctor "maliciously" caused the injury. The fund would be supported by payments from obstetricians, hospitals and insurers who would, theoretically, come out ahead because of lower malpractice premiums and awards.

Proponents of the legislation say the need is urgent because of increasing pressure on hospitals and obstetricians from outsized jury awards. They say access to care could be limited if those pressures cause large numbers of practices or hospital obstetric wards close, as has been the case in some other states.

But the idea has encountered opposition on a number of fronts. Some doctors and hospitals are wary of the level of assessments they would be charged under the program — $7,500 a year for doctors who perform at least five deliveries annually; $175 per birth for hospitals, with minimums and maximums for rural and urban facilities; and 2.5 percent of medical liability premiums for insurers. And patient advocates and trial attorneys say they fear that removing negligence from the equation in virtually all cases would diminish hospitals' and doctors' incentives to adopt best practices for injury prevention.

A 2008 study published in the American Journal of Law & Medicine, which has been cited by supporters of the bill, notes that deterring negligence by doctors and hospitals was not a major aim of lawmakers in either Florida or Virginia when they designed their programs. The proposed legislation in Maryland calls on the Department of Health and Mental Hygiene to develop initiatives to improve the quality of obstetric care and foster patient safety. It also stipulates that the Office of Health Care Quality and the State Board of Physicians may investigate cases handled by the fund and take appropriate action against a health care facility or physician. Whether those measures would be more effective than the current system at deterring negligence is an open question.

The American Journal of Law & Medicine study concluded that the Florida and Virginia systems have largely met their aims of stabilizing the medical malpractice environment for obstetricians in those states, though Virginia's fund has had difficulty maintaining its financial stability. But the study found a number of ambiguities and shortcomings in the way the two systems have developed over the years. Deciding what kinds of injuries and the level of impairment necessary for a child to be eligible for compensation is not clear-cut, nor are the standards for defining whether an injury occurred during the birth or at another time. The result, particularly in Virginia, has been that a process intended to avoid the costs and delays inherent in the courts has become increasingly adversarial and beneficial to those parents who can afford to hire good attorneys and expert witnesses.

The authors of the Maryland legislation have sought to learn from those states' experiences, but the answers for avoiding their shortcomings are not always obvious. In addition, there are some features of Maryland's proposal that are quite different. The program would be mandatory here — it is voluntary in Florida and Virginia — and the standard for allowing litigation only in cases in which a physician or hospital "maliciously intended to cause a birth injury" also appears to be unique.

Given the relatively radical nature of this proposed reform and the novel questions it poses, the bill's sponsors have, wisely, decided to seek the creation of a study commission rather than an up-or-down vote on the legislation itself. Legislative leaders have traditionally been reluctant to create such commissions during election years — given that some of their members will be busy campaigning and some won't return to the General Assembly next year — but the matter is of sufficient importance to break that unwritten rule. We shouldn't take a risk that obstetrics practices will close and mothers will lack access to quality care just for the sake of waiting until after the election to give this proposal the attention it deserves.

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Copyright © 2015, The Baltimore Sun
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