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Birth injury fund still under consideration in Maryland

A working group charged with examining ways to improve access to obstetrical care in Maryland did not reach a conclusion on one of the most hot-button proposals it examined: the creation of a no-fault birth injury fund.

However, the group did support the concept of such a fund and said it warrants further consideration.

No-fault birth injury funds are used in some states to compensate families of infants born with certain brain injuries, without the families having to file and win a medical malpractice lawsuit.

And, advocates of the no-fault fund said the group’s final report, which was sent to the General Assembly earlier this month, represents progress toward the goals of increasing access to OB care and reforming the medical liability environment in Maryland.

A “no-fault” fund is favored by much of the medical community because it would likely stabilize obstetricians’ sky-high malpractice insurance rates, which some say are driving physicians to practice in other specialties.

Others support the idea of a no-fault birth injury fund because it would ensure families receive financial assistance to care for injured children even if they could not prove a provider was negligent. Creating the fund would boost the number of obstetricians practicing in Maryland, supporters say.

But some patient advocates argue that a no-fault fund fails to hold negligent physicians accountable for their mistakes. There are also concerns about how to ensure the financial stability of the fund.

Earlier this year, legislation was introduced to create the Maryland No-Fault Birth Injury Fund, but the measure was scrapped. Instead, the General Assembly created the “Access to Obstetrical Care Workgroup” to study the viability of a fund, as well as other potential solutions.

The workgroup did not outright support the creation of a birth injury fund, but recommended the legislature hire outside experts to further explore the concept.

“The workgroup did not feel they had all the necessary expertise and time to make specific legal and policy recommendations regarding the various provisions of the fund, especially the financing,” the report says.

However, the report does lay out arguments in favor of creating the fund.

“If implemented, the unique ‘no-fault’ structure of the program suggests that more Maryland children would receive compensation and care for birth-related neurological injuries than the number who receive benefits under the state’s current fault-based tort system,” the report says.

However, that position may not be shared by everyone. The group was comprised entirely of people from the medical community; it did not include representatives for injured individuals or their families.

In a letter submitted to lawmakers along with the group’s recommendations, Joshua Sharfstein, outgoing secretary of the state Department of Health and Mental Hygiene, cautioned that the report “does not reflect a consensus among affected parties in Maryland.”

“Before considering a birth injury fund, the Maryland General Assembly should consider input from all interested parties,” Sharfstein wrote.

Despite the lack of a definitive recommendation regarding the no-fault fund, Del. Dan Morhaim (D- Baltimore County), who sponsored the legislation earlier this year, said he’s encouraged by the report.

“Progress comes in small steps,” Morhaim said. “The more the ideas get vetted, the better they become. Anything that moves the ball forward, I’m in favor of.”

Gene Ransom — CEO of MedChi, the Maryland Medical Society — agreed that the recommendation to further explore the creation of a birth injury fund is an indication that times may be changing.

He said the lack of vocal pushback to the report during the workgroup’s public meetings could mean that trial lawyers and others are relaxing their opposition.

“You didn’t hear the yelling and screaming from the groups that traditionally yell and scream about things like this,” Ransom said, although he added that he expects the opposition to be revived once the legislative session kicks off in January.

Morhaim said he intends to introduce another bill to create the fund, though he declined to speculate on the measure’s chances of passing this time around.

Morhaim also said he is pleased with a number of the workgroup’s other recommendations, such as implementing telemedicine initiatives that would allow pregnant mothers to receive care remotely, and not allowing an increase in the state’s cap on non-economic damages.

About Alissa Gulin

Alissa Gulin covers health care, education and general business at The Daily Record.