New Law Impacts Recovery of New York Infants Who Suffer Neurological Birth Injury

Posted on May 25, 2011

Last month, a new fund was created in New York. The fund is designed to pay the medical expenses for infants who suffer neurological damage due to medical malpractice at birth. The law, Public Health Law §2999-h[1], defines "birth-related neurological injuries" as "an injury to the brain or spinal cord of a live infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation or by other medical services provided or not provided during delivery admission that rendered the infant with a permanent and substantial motor impairment or with a developmental disability."

Participation in the fund will be mandatory for families seeking Medicaid or who file medical malpractice lawsuits. Families would still have the right to file medical malpractice lawsuits for non-medical costs associated with neurological birth injuries including out-of-pocket expenses and emotional damages.

Opinions on the new fund are divided. Proponents of the fund believe that the establishment of the fund will provide fair compensation to injured infants in a way that the courts cannot because many courts have trouble predicting an injured infant's future medical needs. Opponents of the fund argue that infants will not be able to get the best medical care under the new law and that instead they will be limited to nursing care that is available at the Medicaid rate.

The details of the fund should become clearer in coming weeks as state regulations are drafted and lawsuits are filed.

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