Learning more about these legal rights is important because if your child’s deficits and disabilities were caused by medical mistakes, compensation may be available for past and future medical bills, physical and emotional pain and suffering and treatment, equipment and facility needs.

Various treatments, procedures and equipment, which may be needed over your child’s lifetime, can benefit your child in multiple ways. Children with Erb’s palsy may benefit greatly from physical therapy and/or surgery.

Although cerebral palsy cannot be cured, treatments are available to help children overcome developmental disabilities or learn different ways to accomplish tasks they otherwise could not do. Such treatments may include: physical and occupational therapy; speech therapy; procedures and equipment to improve respiratory care and/or nutrition; medications to prevent seizures, alleviate muscle spasms, and reduce pain; surgery to correct anatomical abnormalities or release tight muscles; braces and other orthotic devices; wheelchairs and walkers; and communication aids such as computers with attached voice synthesizers. More…

Approximately seven of every thousand babies born alive in our Country sustain birth trauma injuries. Sadly, many of these injuries result from medical mistakes and are completely avoidable. Birth injuries from medical mistakes can be devastating, causing a lifetime of needless suffering and enormous expense.

Some of the more serious birth trauma injuries include:

• Cerebral palsy, a group of neurological disorders, caused by abnormalities or injuries to the areas of the brain that control muscle movements. Cerebral palsy can affect speech, body movement and muscle coordination. Muscles can be either very rigid or very floppy. All types of cerebral palsy are irreversible and permanent, and all can be severely disabling.
• Brain damage, resulting in vision or hearing loss, motor impairment, and/or cognitive deficits including mental retardation;
• Erb’s palsy, which is arm paralysis ranging from mild to severe, including a non-functional arm and clawed hand. It is caused by injury to a group of nerves exiting the cervical spinal cord called the brachial plexus. These injuries typically are caused by failure to properly manage a delivery when the baby’s shoulder gets stuck behind the pelvic bone, a condition called shoulder dystocia. More…

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Collateral Sources

The statute makes clear that “[h]ealth insurers (other than Medicare and Medicaid) shall be the primary payers of qualifying health care costs of qualified plaintiffs”. It also deprives health insurers of any right of subrogation against the fund to recover these costs. Presumably Medicare and Medicaid will also defer to the Fund for payment of medical expenses on behalf of qualified plaintiffs, although the chance of a qualified plaintiff being Medicare eligible seems a bit remote. Since most settlements of birth injury cases result in the formation of a supplemental needs trust which permits the child to continue to receive Medicaid benefits, there will be a significant shift in the burden of paying these expenses away from Medicaid and to the Fund.

Attorneys’ Fees

The statute provides that the attorneys’ fee shall be paid entirely by the defendant and its insurer including any amount apportioned to future medical expenses in the judgment or settlement. It also provides that “… the portion of the attorney fee that is allocated to the non-fund elements of damages shall be deducted from the non-fund portion of the award in a proportional manner.”  This presumably means that the defendant or insurer must pay all of the damages awarded or provided for in the settlement which are not for future medical expenses and must also pay an attorney’s fee for the portion of the award or settlement that is attributable to future medical expenses. The mathematics involved in applying the sliding scale Judiciary Law fee schedule with the structured judgment provisions of CPLR Art. 50-A and then backing out the portion attributable to the future medical expenses will be frightening for most attorneys who went into law because they were not good at math. More…

Fund to Pay for Expenses “Actually Incurred”

During the lead up to the budget deadline, the general thinking was that if enacted the neurological birth-injury bill would replace existing tort remedies in this area. However, if that was the initial desire of the health care industry that had lobbied for this legislation, this is not what came out of the negotiations. The final product provides for payment of healthcare costs for qualifying plaintiffs whether they won a judgment or agreed to a settlement. This apparently means that the fund would pay for costs “actually incurred” by the qualified plaintiff in future years. If the fund will pay for the amounts “actually incurred” then it would not pay the judgment or settlement amount. Thus, the relevance of the amount awarded by the jury or apportioned in the settlement for these expenses appears to be only as to the calculation of the attorneys’ fee or when Fund enrollment is suspended (see below).

Modification of Judgments and Settlement Agreements

Settlement agreements rarely if ever apportion the proceeds of a settlement between the various items of damages alleged. This practice will now have to change for birth-related neurological injury cases. To qualify for the fund all settlement agreements must expressly state this expectation and the statute requires judges considering the approval of a proposed settlement to “direct the modification of the agreement to include such term as a condition of court approval” where it is not contained in the original agreement. Where a plaintiff obtains a court decision or jury verdict that includes an award for future medical expenses, the judgment must contain a provision which indicates that the award for these expenses is to be paid out of the Fund. More…