In the tradition of medical malpractice in the state of Maryland a doctor may be sued for failing to correctly and safely deliver a baby. Injuries during delivery to the mother can range from nerve damage to death and anything in between. Injuries to a baby could result in lifelong developmental disabilities. The role of properly trained medical staff during this time is critical. Everyone from the physician’s assistant to the obstetrician to the anesthesiologist must be properly trained and exercise extreme caution on a mother’s due date. Unfortunately, an estimated seven babies every year, in the state of Maryland alone, will suffer a neurological injury from the actions of healthcare providers at the hospital. The traditional path of recovery has been to seek out a jury verdict of malpractice and obtain a settlement on behalf of the baby through litigation. Currently, Maryland legislators are working to change that process.
Maryland Senator Catherine Pugh has sponsored a bill along with twenty-two delegates in the house to create a “no-fault” system of compensation. The bill only applies to babies who have suffered a “birth-related neurological injury.” The comments explain that this means only children who have suffered an injury to their brain or spinal cord. The legislators seek to create a fund hospitals would pay into annually. This fund would be funded by hospitals at a rate of $25 million per hospital per year. In the event a child was injured at birth the bill proposes that an administrative hearing would be appropriate in place of a traditional trial or litigation process. Then, if the administrator, as opposed to a jury, found that the hospital or doctor was liable, the child’s estate would be paid out of this fund. The bill would take effect on the 1st of January next year. The bill permits hospitals to remove a lawsuit from court simply by making a motion with the court, after which the court is required to dismiss the suit or order the plaintiff to file a complaint with the fund. In fact, the only way that a traditional lawsuit against a physician or hospital could be filed is if it could be shown that they maliciously and intentionally caused injury to the child.
As with any legislation that seeks to alter established legal principles, there are some areas that raise concerns. Any time a person has been injured by the carelessness of another, they have the right to seek compensation for that injury. This is done in a civil action under the field of law known as “tort” law. When you take a civil action away from the court system, the Maryland Rules of Civil Procedure no longer governs the process. As best stated by the Maryland Court System, “these rules, which have the force of law and are mandatory, establish a uniform process for trying cases and ensure that justice is fairly administered.” The administrative process, which is currently being discussed in this legislation, has neither established rules nor procedures.