The Baltimore Business Journal reports that Maryland lawmakers are considering creating a birth injury fund. While on its face this may seem like a wonderful and well-intentioned idea, it would ultimately hurt those families who are most severely harmed in birth injury cases.
Regular System With No Birth Injury Fund
In a regular system, like that in Chicago, parents file birth injury lawsuits w hen babies are injured during birth or before birth by the careless or intentional acts of a doctor, nurse, hospital, or other healthcare provider. When the actions are not criminal but are serious enough to hurt the baby, they are a “tort,” which means a civil wrong that can be sued over. When a meritorious law suit is filed, either both sides will come to an agreement as to what damages should be paid to the injured family, or there will be at a trial. Both sides will be represented by experienced medical malpractice attorneys who can advise them as to what risks they should and should not take. At the trial, if the jury determines that the hospital or healthcare provider is “liable,” or responsible, for the injuries, then the jury will determine how much the family should be compensated based on the individualized facts of the case.
Birth Injury Fund System
A birth injury fund would eliminate the entire regular system. In its report, the Baltimore Business Journal explains that the creation of such a fund would eliminate injured parents’ right to sue over their babies’ injuries. Rather than allowing a jury to make a determination as to the proper damages award given the individual facts and complex details of the case, some sort of schedule would determine the maximum damages the injured parents would be paid. While in the Illinois system a jury can determine how much money will be required to pay for the needs of this specific child, there would be no such individual determination in a birth injury fund system.
The Real Motivation Behind the Birth Injury Fund
The families of severely injured children would not benefit in the birth injury fund system. The insurance companies and the medical professionals who commit malpractice would be the ones to benefit instead. The Baltimore Business Journal report notes that the people pushing for the bill are doctors and other health workers. Those healthcare professionals cite rising malpractice costs caused by large verdicts.
The Frederick News-Post reports that in a two year period Baltimore City and Prince George’s County jury returned birth injury verdicts against hospitals for $55 million, $22 million, $18 million, $15.6 million, and $9.5 million. Those numbers weren’t just drawn out of a hat, however. They were settled on by a jury made up of presumptively reasonable people who had heard all the evidence. What those who disparage these large verdicts ignore is that large verdicts don’t happen unless two other things happen: (1) a medical professional commits malpractice and (2) that malpractice causes a lot of damage. The way to minimize damages collected in malpractice suits is not to strip the truly injured of their right to sue. The way to minimize the damages is to prevent malpractice from happening in the first place. And the only way to do that in a capitalist economy is to make it so malpractice is not profitable, by forcing those who cause injury to take responsibility for it.
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