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Limiting Recovery of Neurologically Impaired Infants in New York

The proposed $250,000 cap on medical malpratice cases was eliminated before the latest New York budget was adopted. But the neurologically impaired infant fund was not. The new statute, Public Health Law § 2999-5[1], qualifies “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 occuring 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”.

Under the law, infants may not obtain premium treatment but are relegated to services that are covered at the prevailing Medicaid rate. Judges and juries are divested of their discretion to award neurologically impaired infants a lump sum of damages that they determine to be suitable. Rather, parents of neurologically impaired infants can expect to fill out a flurry of paperwork and prove their case over and over again to recover medical costs that the system will provide compensation for on an annual basis. The size of the fund will vary each year according to state actuaries. Ironically, the fund will be administered by a combination of the state insurance and banking departments. Only once the fund is reduced to twenty percent or less of its annual size can lawsuits be brought to recover the medical expenses that the infants need.

Participation in the fund is mandatory to those filing medical malpractice suits for injuries covered by the statute after October 1, 2011 as well as those who previously filed cases which have not reached verdict or settlement. Will Cuomo ever pressure the health care industry to provide better care or will he continue to deprive victims of malpractice of their ability to receive the care and compensation they deserve?


New York Law Journal, Lawyers Await Specific Regulations on Infant Medical Malpractice Fund, Joel Stashenko, April 20, 2011.