State panel recommends creation of a birth injury fund

Babies harmed in childbirth could forgo the legal system for compensation.

A task force set up by the General Assembly earlier this year has recommended that the state create a fund to help care for babies with suffering neurological injuries during birth, according to a report sent to lawmakers.

A no-fault fund, modeled after those in Virginia and Florida, is controversial among patient advocates and malpractice attorneys. But the report authors, all from the health care industry, said it would mean more children get compensation than the number going through the court system.

The report also said it would also help control medical malpractice-related costs for doctors and hospitals.

"The fund means babies born with injuries get compensation even when there wasn't negligence but the outcome was just bad," said Dr. Andrew J. Satin, director of gynecology and obstetrics at Johns Hopkins Hospital and a task force member. "One reason people sue when doctors have done nothing wrong is because of the burden of caring for babies born with challenges."

Satin said the fund would address an impending access issue because a few large malpractice awards could drive providers away. Already, he said, studies show an increase in the number of women getting late or no prenatal care and a steep decline in obstetrician-gynecologists in Baltimore City from 1995 to 2011, though the number statewide was up slightly.

Michael Bennett, a patient advocate, said a fund would only shield negligent doctors.

"As I see it, any such fund would inevitably lead to a lack of meaningful accountability, which would lead to further negligence, and inevitably hurt the victims and their families with unfair and unjust compensation," he said.

Those who were harmed by negligence could get cheated, added Wayne Willoughby, a malpractice attorney at Gershon, Willoughby, Getz & Smith LLC and past president of the Maryland Association for Justice, which represents trial lawyers.

"Any program to compensate all birth injured babies would necessarily deny those babies injured by negligence of the money needed for their care over a lifetime, plus just compensation for their loss of earnings potential as an adult and the pain and anguish they will experience because of a practitioner's negligence."

Willoughby also noted that actuaries have projected deficits in Virginia's birth injury program, which threatens payments for everyone.

Legislation introduced during the past General Assembly session would have required doctors, hospitals and insurers to pay into a Maryland fund. The bill drew bipartisan support but didn't pass.

The sponsor in the House, Del. Dan Morhaim, a Baltimore County Democrat who has supported a fund for years, said Maryland can learn from other states and plans to reintroduce the measure.

"The goal is to get people the help they need without having to go through a protracted litigation," he said Morhaim, who is a doctor. "It's like the lottery now, with some winners and some who get no relief."

There have been two multimillion-dollar awards recently, at MedStar Harbor Hospital and Johns Hopkins Hospital for babies injured during birth. Both remain under appeal.

Many hospitals support a fund, but some still want to see the details of how money would be raised, and how it treats doctors and hospitals.

"We absolutely support the concept of a fund, but the devil is in the details," said Jim Reiter, spokesman for the Maryland Hospital Association.

MedStar Health, among the state's largest hospital systems, also supports the concept of a fund, but officials want to see that it would be broad and cover most obstetric cases. That would ensure doctors and hospitals stay in the business of delivering babies, said Larry L. Smith, MedStar's vice president of risk management.

He acknowledged that hospitals can make mistakes but said they also are vulnerable because they routinely deliver the babies of women who got no prenatal care or have other risk factors or conditions.

Smith called the big awards when something goes wrong guesses by a jury at what a child's lifetime needs might be.

Threats from such awards contributed to formation of a new group of providers, businesses and citizens called the Maryland Maternity Access Coalition, which has made a birth injury fund a priority.

"We expect that the task force's thorough study will help provide the crucial data that the General Assembly and Gov.-elect Hogan need to create a birth injury fund and ensure Maryland hospitals and medical professionals have can continue providing obstetrical services to women across the state," Beth Laverick, volunteer president of the coalition, said in a statement.

meredith.cohn@baltsun.com

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