Fruit of the Womb
Fruit of the Womb

No Fault Compensation for "Birth-Related Neurological Injuries?"

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Today I went to testify before a State Senate Judiciary Subcommittee that is proposing legislation for a no-fault “Birth-Related Neurological Injuries” bill. Currently such legislation is in place in only two states, Virginia and Florida. The former was the first and is struggling to survive, financially, and the latter is currently in better shape fiscally, but that fiscal stability is highly dependent on the investments they have made at the times when there were surplus dollars in the coffers. If I understood what the Florida director said at today’s hearing, they only brought in about $22,000,000 in revenue this year and actually paid out $35,000,000. Obviously, that cannot go on forever (unless you are part of the federal government). Both of these programs provide compensation only for babies who are severely damaged “physically and mentally” in the peripartum period (during labor, delivery, and immediately postpartum) and only if their providers and hospital are participants in the program. I think there are problems with this approach for reasons that will be clear later on.

The gist of my testimony was the following: The affected children are the ‘innocent victims’ regardless of the cause of their neurological injury. These children will need special education, ongoing rehabilitation, special services, and medical care the rest of their lives. Costs of these programs are beyond the means of most families. If families go through the tort system, the process may take many years even though their need is NOW, they run the risk of getting nothing, and if there is a settlement or a judgment in their favor, attorney’s compensation may eat up 60% of the final dispensation.

At the same time, liability insurance premiums are continuing to rise for OB providers. This rise in premiums is driving good providers out of obstetrical practice, especially in rural areas where the low OB volume and the small profit margin of providing obstetrical care make it impossible to continue to do so and keep their heads above water. This will inevitably lead to an increase in both fetal and maternal complications during pregnancy for patients who have to travel longer distances for care. Legal settlements for OB cases can also be astronomical and well beyond reason. Indeed, the average settlements in OB cases are about $2,500,000, more than twice the average of other medical specialties. No one I know practices obstetrics with the intent of maliciously causing damage to the baby, yet ridiculously large settlements have been handed out by juries even in circumstances where there was absolutely no evidence of malpractice in the peripartum period on the part of the provider. So, for all the reasons above, the concept of a true “no-fault” program is worthy and should be pursued.

There are some other issues of which the general public may not be aware. About 90% of “birth-related neurological injuries” occur at some time BEFORE the labor and delivery process and are, therefore, outside the control of the provider (I can address some of those causes in another post). If the programs in Virginia and Florida cover only those babies who clearly suffered damage during the peripartum period that means only 1 out of every 10 neurologically damaged babies will derive some benefit from the program. Yet, ALL of these babies may require and deserve comparable services. That also means that 9 out 10 could still put the provider “at risk” for litigation, even if the outcome was completely outside their control. And, being “at risk” means that at least some of these providers will have judgments decided against them simply by the process of jury roulette.

To make matters worse, despite the knowledge that most of the neurological damage is outside provider control, the programs in both Florida and Virginia put the bulk of the financial burden for financing their programs on the shoulders of the providers and the hospitals in which these babies are born. If you believe even a portion of my preceding comments, such an approach seems difficult to justify. Except in cases of gross negligence (which unfortunately do occur), the care and support for these children and their families is really a problem for society as a whole, and shouldn’t be purely the responsibility of those of us who continue to provide obstetrical care. The hours (and reimbursement per hour) are bad enough, but charging us an extra $5,000 per year for the privilege to practice obstetrics seems only to add insult to injury. (At least in Florida, the insurance carriers may reduce your premiums by a like dollar amount, but at $200,000+ per year premiums, that seems to be hardly generous). At the least there should be some mandate built into any “no-fault” program that the insurance industry, which will undoubtedly be prime beneficiaries of such an approach, is required to help underwrite a portion of the program funding. I certainly don’t think we can expect ANY support from the plaintiff’s attorneys in this regard!
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About the Author

Dr. Trofatter is an expert on maternal-fetal medicine.

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