Hospitals tout new approach on birth injury bill after record Hopkins verdict

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ANNAPOLIS — Maryland hospitals will take a new crack at getting lawmakers to create a fund to compensate families of babies injured during birth, an attempt that has taken on new urgency following a record $229 million verdict against Johns Hopkins Bayview Medical Center last year.

Attempts to create a no-fault birth injury fund failed for six years as hospitals’ efforts have been stymied by the state’s plaintiff’s attorneys. The hospitals say this year’s Infant Lifetime Care Trust legislation, introduced Monday night in the Senate, is a completely new approach compared to previous attempts.

“We really believe this represents a significant compromise compared to prior legislation,” said Ryan O’Doherty, vice president for marketing and external affairs at Mercy Medical Center.

Unlike prior bills, this year’s legislation would not require families to waive their right to sue. When a judgment or settlement is reached, instead of awarding a lump sum for future medical expenses, families would go through a fund that pays for medical expenses on an ongoing basis and based on what the patient’s physician says is medically necessary.

Non-economic damages, past medical expenses and future wages could still be collected through a jury award or settlement.

“People can still have their day in court if they desire,” O’Doherty said. “In fact this program requires it.”

The legislation is sponsored by Sen. Delores Kelley, D-Baltimore County, and supported by the Alliance for Infant Lifetime Care, which includes the American College of Obstetricians and Gynecologists, the Maryland Hospital Association, Mercy Medical Center, GBMC Healthcare, Total Healthcare, MedChi, Johns Hopkins Medicine, the Kennedy Krieger Institute, MedStar Health, the University of Maryland Medical Center and the Maryland Patient Safety Center.

The model for the legislation is a similar fund in New York. The previous no-fault legislation was based on funds in Florida and Virginia.

Plaintiffs’ attorneys remain skeptical, particularly about how the fund would be financed. 

Hospitals that deliver babies would pay into the fund of about $40 million as part of the state’s regular rate-setting process.

The plaintiffs’ attorneys said that removes the burden from the hospitals.

“Once again, Maryland’s hospitals want other people to pay for their errors,” George Tolley, legislative chair of The Maryland Association For Justice, said in a statement. “As in previous years, this bill shifts the cost of a hospital’s fault onto other payors – health insurers, Medicare and Medicaid. Ultimately, patients and taxpayers are the ones who will pay $40 million dollars every year, not the hospitals and doctors who commit these errors and jeopardize the life and health of their patients.”

Tolley also took issue with how payments from the fund would be decided.

“This legislation also interferes with the civil justice system by supplanting a jury’s verdict determining a victim’s future medical needs with care approved by a bureaucratic panel,” he said.

The hospitals said the legislation would include provisions that say that the patient’s physician’s decisions are presumed to be qualifying; if cases are adjudicated the fund would pay for attorney’s costs.

The change from the hospitals comes after a significant jury award against Johns Hopkins Bayview Medical Center last year. A jury awarded a $229 million verdict, including $200 million in future medical expenses, in a birth-injury malpractice case. The award is the largest ever awarded in a medical malpractice case in the country.

That award was later reduced to $205 million to comply with Maryland’s cap on non-economic damages. The rest of the award is still on appeal.

The hospitals say significant awards dating back years have hurt their ability to secure malpractice insurance.

“The medical liability situation in Maryland is in crisis due to a largely unconstrained legal system,” Nicole Stallings, senior vice president for government affairs and policy at the Maryland Hospital Association, said in a statement. “To continue to offer essential services to their communities, Maryland hospitals are proactively seeking to establish an Infant Lifetime Care Trust. The state’s birthing hospitals will fund the trust. In the extremely rare instance where there is negligence, hospitals and other care providers will be accountable and the child’s future health care needs will be met.”

The association says four insurers have stopped writing policies in Maryland, pointing to the state’s litigation climate.