Lawmakers in the state of Maryland are trying to create a “fund” that will help pay for the treatment of babies who develop neurological injuries while they are being born. “That sounds great! What could be the harm in that,” you ask? Well, read on and we’ll explain.

Overview of the Legislation

Maryland Birth Injury Fund

Maryland Birth Injury Fund

Under this proposed legislation, hospitals, doctors with obstetrics and gynecological practices, and those who provide malpractice insurance will be required to pay annual fees to subsidize the birth injury fund. This will allow families to tap into the fund to pay their children’s medical expenses, recover lost earnings potential, and cover other related costs – after an administrative law judge decides your eligibility. You would still need to prove that negligence took place before receiving any compensation.

The sponsors of the bill that include Johns Hopkins Hospital and the University of Maryland Medical System state the fund is necessary in order to help ease the financial pressure that face doctors and hospitals as a result of the high costs associated with medical malpractice. Their concerns are if these malpractice costs continue to escalate, it may cause some practices to have to close thus reducing patient access to health care providers.


While the idea of a fund sounds good on paper, many critics say the bill would allow doctors and hospitals to avoid penalties for their actions in cases of medical practice. So instead of working to prevent medical malpractice through education, peer reviews of doctors, etc, the insurance companies have simply decided to find a different way to pay for claims of negligence – one that doesn’t affect their bottom line.

The high costs of malpractice insurance have been frequent areas of complaint for doctors and hospitals that provide obstetrics and gynecological services. Recent egregious instances of malpractice have had a major impact on the costs of malpractice insurance at Mercy Medical Center. These escalating costs were the contributory factor in the discontinuance of a midwife practice that had been working out of the hospital for many years. Mercy is only one of the hospitals that are rallying for the proposed legislation. Legislation which they believe will help reduce the liability placed on them for the negligence that they themselves caused. Sounds a bit unscrupulous, no?

While there is no doubt complications can occur during childbirth, even under the best of circumstances, it’s important you understand what medical malpractice actually is. A birth injury is not automatically “medical malpractice.” Medical malpractice occurs when a doctor’s actions fall below the accepted standard of practice in the medical community, and lead to an injury or death.  Under the proposed legislation, it would be necessary to make application directly to the fund including proof of the injury. An administrative law judge would then make a determination whether the child is eligible for compensation for the injuries. Nothing is automatic; you still have to prove your case, you just now have a limited fund to draw from instead of recovering directly from the insurance company.

The Fund Simply Benefits Insurers and Health Care Providers

There are several points to consider about this proposal. Who is really going to benefit? The truth is it will not be the child, but rather the insurance companies who will not need to pay out money in the case of a malpractice lawsuit. You can mark my words that if this is implemented, victims will find that the fund will not cover their actual damages.

While you may hear people saying that frivolous lawsuits resulted in the creation of this bill, it is important to keep in mind that insurance companies don’t lose money to frivolous lawsuits. They lose money to valid lawsuits. If a claim is frivolous, the jury will not arbitrarily award damages to the plaintiff. Insurance companies like to make it seem like they’re the victim, but if you’re as involved in these cases as I am, you’d see that the real victims are those who are unable to recover the money they will need for a lifetime of care.

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