MD lawsuit-protection fund derailed amid criticism

Daily Record, The (Baltimore), Mar 23, 2005 by Robyn Lamb

Critics succeeded in altering a bill that would have created a fund to protect doctors from certain birth-related injury malpractice lawsuits.

Sen. Andrew P. Harris, R-Baltimore and Harford, amended his bill, Senate Bill 682, to instead create a task force to study the creation of a birth-injury compensation program in Maryland.

Under the bill, the task force would study the creation of a fund that would provide hundreds of thousands of dollars for lifetime medical care to children who suffer birth-related neurological injuries. Chief among these is cerebral palsy, a condition affecting body movement and muscle coordination that is caused by brain damage before, during or shortly after birth.

Such a fund would allow the state to bar malpractice suits in birth-injury cases, which according to Harris make up about 70 percent of cases involving obstetricians. That would theoretically lower obstetrical liability premiums.

Harris, a physician, originally proposed creating a fund but amended his bill to instead establish a task force after hearing warnings from trial lawyers and others about the problems faced by a similar program in Virginia.

At hearings, witnesses said the Virginia program has been plagued by its costs, varying and often limited definitions of a qualified injury, and shifting benefits. At one point, the fund had so much money it was being used to build homes for cerebral palsy sufferers.

I think we need to look in depth and address all of the concerns about how Virginia is not working, said Harris. We need to make sure that everyone is comfortable that we can design a program that is better than Virginia's.

Under Virginia's Birth Related Neurological Injury Compensation Program, which was launched in 1987, children who are injured at birth with brain damage caused by a loss of oxygen are provided with medical care throughout their lives. But they cannot sue their doctors over the condition.

Since its inception, the program has accepted fewer than 100 children and, although it has $100 million on hand, enough to pay the cost of services for between 20 and 25 years, it will likely come up as much as $100 million short after that.

By law, the program is required to pay the cost of lifetime medical care for participating children. In 2002, the average spent annually on every child was $68,000.

Donna Rostant, a Fairfax, Va., lawyer who testified against Harris' original bill, said the Virginia program has helped a limited number of children and has not fulfilled its mission of reducing malpractice premiums.

We are the experiment of an absolute cap [on malpractice settlements] and a birth-injury program and that is just not enough, she said. Since 1980 our physicians have been yelling about insurance and they are still yelling.

Harris and others who support creating the fund remain confident that if designed correctly, the idea works.

The purpose of the bill, at least to my way of thinking, is that it eliminates the cases that are expensive for a small number of children, and helps care for the large number of those children who don't sue, said John Freeman, a cerebral palsy specialist at the Johns Hopkins Hospital.

Freeman said some of Virginia's problems could have been avoided by making the program mandatory - doctors now pay for their voluntary participation - and by broadening the definition of what constitutes injury.

Such details will become the work of task force members.

If Harris' bill passes, they will be called upon to study programs in Virginia and Florida, which started its own program later, and carve out the issues critical to designing such a fund.