Maryland Senate Bill 798, which would have established the Maryland No-Fault Birth Injury Fund (“Fund”) for the “adjudication and compensation of a claimant for a birth-related neurological injury,” was put on hold when its sponsor in the Maryland Senate added an amendment to the bill to establish a task force to study the issue.
How The Fund Would Have Functioned Under Senate Bill 798
Under the original provisions of Senate Bill 798, the Fund would investigate each claim to determine if the injury alleged is a birth-related neurological injury. The Fund would then submit the claim, all materials submitted by the claimant, and the Fund’s response to the claim to the Office of Administrative Hearings (“OAH”) for determination of eligibility and to determine the nature and amount of compensation and benefits to be provided to the claimant on the basis of the evidence presented in a contested hearing. If OAH determines an infant has sustained a birth-related neurological injury, the claimant may be awarded one or more benefits and compensation to be paid or provided from the Fund.
Benefits And Compensation Available For Birth-Related Neurological Injuries
OAH may award the infant actual lifetime expenses for qualified heath care costs, limited to reasonable charges prevailing in the same community for similar treatment of injured persons when the treatment is paid for by the injured person, excluding specified expenses such as expenses that the infant receives from governmental funding, expenses provided through a health insurance policy, or expenses related to housing or the modification of a residential environment.
OAH may also award of up to $100,000, payable in periodic payments or as a lump sum, to the injured infant or to the parents or legal guardians of the injured infant for the benefit of the injured infant, as well as loss of earnings, which may be payable in periodic payments beginning on the eighteenth birthday of the infant (alternatively, a funeral payment of $15,000 is awarded if the infant dies before age 18).
OAH may also award the reasonable expenses incurred in connection with the filing and prosecution of a claim to assert eligibility and for compensation and benefits, including reasonable attorney’s fees based on an hourly basis, subject to the approval and award of the administrative law judge. An award of expenses must require the immediate payment of expenses previously incurred and that future expenses be paid as incurred.
Funding Of The Fund
Maryland hospitals and obstetrical physicians are required to pay annual premiums. Certain insurers are required to pay annual surcharges.
Each metropolitan hospital must pay an annual premium to the Fund equal to $175 per live birth for the prior fiscal year. The annual premiums are capped at $525,000 for metropolitan hospitals, with a minimum premium of $117,500 for a metropolitan hospital with 100 or fewer births during the prior fiscal year.
Each rural hospital must pay an annual premium to the Fund equal to $150 per live birth for the prior fiscal year. The annual premiums are capped at $450,000 for rural hospitals, with a minimum premium of at least $15,000 for a rural hospital with 100 or fewer births during the prior fiscal year.
(There are 11 rural hospitals and 20 metropolitan hospitals in Maryland that delivered approximately 65,963 babies in 2013. None of the rural hospitals hit the floor or the cap; six of the metropolitan hospitals hit the cap, but none of them hit the floor.)
Each physician who performed at least five births in Maryland during the prior fiscal year must pay an annual premium in the amount of $7,500 to the Fund (there are 932 licensed self-identified obstetrical physicians in Maryland). Medical professional liability insurers provide a credit on the physician’s annual medical malpractice liability insurance premium in an amount that will produce premiums that are not excessive, inadequate, or unfairly discriminatory.
The Fund is authorized to increase the premium by no more than 5% each year if the actuarial estimate of current liabilities equals or exceeds 80% of the Fund’s assets. The Health Services Cost Review Commission (“HSCRC”) is required to increase rates for obstetrics services to account for the cost of the premiums.
Each medical malpractice insurer or mutual society must pay an annual surcharge to the Fund in an amount equal to 2.5% of the amount collected for all net direct written premiums for medical liability coverage in Maryland.
How Many Maryland Births Would Be Affected By The Maryland No-Fault Birth Injury Fund?
The Fiscal and Policy analysis by the Maryland Department of Legislative Services regarding Senate Bill 798 states, “Maryland can anticipate that a qualifying birth injury occurs in roughly 1 out of every 10,000 live births. Thus, out of the State’s total 65,963 births, approximately 7 qualifying infants are born each year.”
Fiscal Effects Of The Fund
Revenues to the Fund are estimated to be $23,148,525 annually. The Fund is expected to receive approximately $115.7 million over the five-year period from fiscal 2015 through 2019. Over that same period, expenditures are expected to total approximately $18.2 million. Thus, the Fund balance could be as high as $97.5 million by the end of fiscal 2019.
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