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Attorneys battle over proposed no-fault birth injury fund

Sen. Delores Kelley, D-Baltimore County, is the sponsor of (Bryan P. Sears)

Sen. Delores G. Kelley, D-Baltimore County, is the sponsor of  legislation to create a no-fault fund to compensate families of babies injured during birth. (Bryan P. Sears/The Daily Record)

ANNAPOLIS – Hospital attorneys battled plaintiffs’ lawyers Wednesday over legislation to create a dedicated no-fault fund to compensate families of babies injured during birth. Under the legislation, families of injured babies would waive their right to sue.

Appearing before a Senate committee, hospital lawyers said the proposed fund would spare parties protracted and expensive litigation, the specter of which has driven up medical malpractice insurance premiums for obstetricians and, thus, health care costs for their patients.

The legislatively created fund would provide injured infants and their families “a statutory right to health care benefits” and remove the need to prove medical fault in litigation, attorney Carl S. Jean-Baptiste told the Senate Judicial Proceedings Committee. The fund “would ensure all future medical expenses,” added Baptiste, of Gallagher Evelius & Jones LLP in Baltimore.

But plaintiffs’ attorneys, led by the Maryland Association for Justice, assailed the fund as unfairly depriving infant victims of their right to sue later in life and absolves negligent doctors of legal liability.

“I believe in the right to trial by jury,” said Keith D. Forman, of Wais Vogelstein Forman & Offutt LLC in Baltimore. “I see no reason to override the constitutional rights of the most injured victims.”

Similar legislation to create a no-fault birth injury fund has failed in the General Assembly for at least the past five years.

Under the current bill, a birth-injured child would be eligible for up to $500,000 in compensation, as well as actual lifetime expenses for necessary and reasonable health care costs and loss of future earnings. The fund would also provide $25,000 for funeral costs if the child dies before age 18.

The determination of birth injury and payment would be made by an administrative law judge, subject to appeal to the circuit court.

The bill calls for hospitals to support the fund by paying annual premiums and directs state regulators to take those premiums into account when setting hospital rates each year.

Sen. Delores G. Kelley, D-Baltimore County, chief sponsor of Senate Bill 869, said the measure would provide “fair, expedited and less costly relief” for birth-injured children and their families.

The families “would get relief … without a court battle” because the bill would “eliminate many of the legal hassles,” Kelley told the Senate committee.

She added that the resulting decrease in malpractice insurance premiums for obstetricians would encourage the doctors to remain in practice and continue tending to the needs of expectant mothers.

But Forman, the plaintiffs’ lawyer, said the existence of a no-fault fund would not serve the needs of the injured children or their families.

Forman predicted the families and injured children would have to appear frequently before administrative law judges to ensure they receive just compensation from what would inherently be a finite and strained fund, with many potential claimants. Such fights are currently avoided through settlement or litigation against a negligent health care provider, he said.

“It’s my job to make sure these minor children are protected for the rest of their lives,” Forman told the committee. “The system works. We need no changes.”

The bill has been cross-filed in the House of Delegates. Del. Bonnie Cullison, D-Montgomery, is the chief sponsor of House Bill 1320.

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