Maryland does not have a medical malpractice crisis. In a real crisis, the state’s largest medical malpractice insurer could never afford to give back 45% of Maryland doctors’ malpractice premiums because costs would be going up. But they are able to credit back millions to doctors annually.
Nonetheless, every year hospitals, corporate medical systems and doctors hire an army of lobbyists to push the Maryland General Assembly to create a “birth injury fund” so that patients and taxpayers will pay for their most egregious preventable medical errors. Maryland’s legislators have repeatedly rejected this bad bill, and they must do it again this year.
Here is the real problem: Babies can be hurt very badly at birth by preventable medical errors and negligence. These catastrophic, life-changing physical and neurological injuries can require around-the-clock care. Nurses, specialized medical equipment, and home modifications for bathrooms and wheelchair ramps are expensive.
Few families can afford such care on their own. Lawyers like me hold hospitals financially responsible for their errors. Almost no birth injury cases go to trial, but the process takes years. Hospitals can, and do, control their risk and hide their mistakes from public scrutiny with confidential settlements containing non-disclosure agreements. In the last decade, I can count the number of Maryland verdicts in birth injury trials on one hand.
Hospitals could lobby for laws that improve patient safety, take steps to eliminate birth injuries and prevent medical errors — entirely removing the need for litigation — but they don’t. A Johns Hopkins study found that medical errors are the third leading cause of death across the U.S., causing more than 250,000 deaths annually. Hospitals know this is the actual crisis, yet they continue to resist safety changes.
Instead of focusing on patient safety, hospitals and the Baltimore Sun Editorial Board apparently, have tried to shock everyone into believing that a single birth injury verdict last summer created a malpractice crisis in Maryland. The reality should change minds. Days before the verdict, a Hopkins lawyer rejected a $14 million settlement offer because administrators wanted to “try more cases” and felt they “need to be willing to take some verdicts,” according to an email presented to the House Judiciary Committee last fall.
After the jury verdict, the judge cut the award by more than half, using existing Maryland laws like the statutory cap on non-economic damages and a law the judge used to order that future medical expenses be paid out from a trust slowly over the child’s lifetime. Under the arrangement the judge ordered the parties to negotiate, Hopkins will pay less than half the original verdict and they will get back any money left in the trust when the victim dies. Hopkins could end up making a profit under the arrangement negotiated with the family.
Hospitals say the solution to this made-up crisis is a birth injury fund. This year, hospitals say they would gladly pay $40 million a year into the fund if their legislation passes. Sounds great, but it is just not true. Patients and taxpayers will end up paying, not hospitals.
Maryland’s unique health care finance system means the “cost of [a birth injury] Fund is ultimately paid by rate payors (commercial insurers, Medicaid and Medicare),” according to Maryland’s health insurance trade association. That means the cost is really paid by everyone who pays health insurance premiums and by taxpayers who pay for Medicaid and Medicare.
Despite The Sun’s rosy portrayal of New York’s Medical Indemnity Fund, actuaries project it is a $2.2 billion unfunded liability, looming like a budget iceberg for New York taxpayers. Victim advocates have reported “unreasonable denials for care or accommodation,” through the New York fund and appeals that often result in an “entirely new legal action.” Unlike Maryland, New York has no caps on non-economic or punitive damages. Families there can use their non-economic damage verdicts to cover costs of care when red tape gets in the way. That is not an option for victims here because Maryland judges must reduce a jury verdict for pain and suffering to a statutorily determined cap.
Unfortunately, Maryland’s hospitals have conjured a pretend crisis to scare legislators. The fact is that Maryland’s corporate medical systems, hospitals and doctors are making money and have plenty of insurance options. There is no need for a birth injury fund that will shift the cost of their preventable errors to Maryland’s working families and employers. At the end of the day, it is patients and taxpayers who will end up paying $40 million so that hospitals can avoid responsibility for preventable injuries and corporate practices that jeopardize the life and health of their patients.
Ellen B. Flynn (eflynn@medicalneg.com) is an attorney who represents those injured by medical negligence and president of the Maryland Association For Justice (www.mdforjustice.com).
