More States Considering No-Fault Birth Injury Fund

For more than three years, Maryland lawmakers have debated implementing a no-fault birth injury fund designed to financially support babies born with neurological birth injuries.  As Maryland and other states consider something like a no-fault birth injury fund, there is still a great deal of skepticism over whether these funds really benefit families affected by birth injuries.

States Considering No-Fault Birth Injury Fund

While the promise of financial support is certainly tempting, several questions remain, including:

  • Who will pay for the fund?
  • What does the fund really offer?
  • What about a family’s right to sue?
  • What about doctor accountability?

These are some of the questions that we hope to address in this article.

No-Fault Birth Injury Fund Information

The no-fault birth injury fund in Maryland (Bill HB 377) is a proposal aimed at helping families financially cope with neurological birth injuries.  Fundamentally, the no-fault birth injury fund would be available to families regardless of how the infant was injured, be it natural causes or medical negligence.

Maryland lawmakers have based their proposal on similar laws in Florida and Virginia, and claim the fund will provide lifetime care for neurologically disabled children injured during or shortly after delivery.

Proponents of the fund believe that it would help families bear the financial burden of a lifelong injury without having to navigate through the court system as they would with a lawsuit.

Proponents also believe that a decline in medical-related lawsuits would help prevent a gap in healthcare supply and demand.

Problems with a No-Fault Birth Injury Fund

There are several notable problems with a no-fault birth injury fund, though.  Consider the following:

Who will Pay for the Fund?

This question is proving difficult to answer.  Supporters of the fund have said that hospitals would pay to support the fund.  Opponents argue that the financial burden will rest on the shoulders of taxpayers.  Other parties involved in the debate believe that funds will come from a combination of insurers, Medicaid and Medicare, and hospitals.

Based on the language of the proposed law in Maryland, many attorneys and opponents to the law strictly believe that the burden of birth injuries will fall to the taxpayers, leaving possibly negligent doctors or hospitals able to continue practicing without any form of accountability or consequence.

What about the Right to Sue?

Another problem with the no-fault birth injury fund is it may violate a family’s right to sue for medical negligence.  Because the fund is “no-fault” it means that a family accepts financial support without pursuing accountability or justice for a violation of their rights as patients, and citizens of the United States, including the right to a jury trial.

When a lawsuit is filed, the victim’s family has the opportunity to present evidence, seek justice, and ask for damages equal to their trauma and losses.  The no-fault birth injury fund does not allow any of these options.  Rather, it rests on the idea that the family will be provided with a standardized financial amount, regardless of what they have been through or personally suffered.

In essence, no-fault birth injury fund law strips away the very personal and traumatic nature of birth injury cases, and is akin to settling a case and hoping for the best.

There are no clear answers to questions about limits to the fund, or individual support for families.  Opponents to the fund make it clear that the new law could prevent families from getting maximum compensation for their experience that they might otherwise achieve in a lawsuit.

What about Doctor Accountability?

One of the most startling problems with the no-fault birth injury fund is that it not only strips away an individual’s right to sue, it also strips away any hope of holding a doctor or hospital accountable for negligence or malpractice.

States Considering No-Fault Birth Injury Fund

Without formal complaints or lawsuits being filed, doctors and hospitals who are negligent may not be reported to medical regulators or boards, and may fly “under the radar” in terms of sanctions or consequences for their actions.  This presents the possibility of more doctors and hospitals operating negligently and hurting patients under the presumption that they cannot be punished for their actions.

Life After a Birth Injury

There are many forms of birth injury, and depending on the diagnosis, your child may only suffer a mild discomfort, or may be permanently disabled.  Some of the most common birth injury types include:

  • Bruises
  • Umbilical cord complications
  • Fractures or broken bones
  • Brain injuries
  • Brachial plexus injuries
  • Paralysis
  • Jaundice/Kernicterus
  • Placental injuries

If your child suffered these, or any type of birth injury during or after delivery, you are likely well aware of the emotional, physical, and financial toll that these injuries can have.  Many birth injuries require long-term, or even lifelong care, which can be an extreme financial burden on you and your family.

Birth injuries may require modifications to your home, specialized education, assistance aids, and altered or controlled social interaction.  There is no way to generalize or standardize what your family has been through, and you deserve the opportunity to defend your rights and get the compensation you deserve.

Getting Help with Your Birth Injury Case

We manage birth injury cases all across the U.S.  If your child has suffered a birth injury due to the negligence of a doctor or hospital, contact our office to learn more about your rights and how to make sure your family has the support it needs.  We understand the personal, traumatic nature of birth injuries, and we are dedicated to providing an individualized approach to every case.