Med Mal News

An attorney for the Department of Financial Services, Brenda Gibbs, filed an affirmation before Judge Steinhardt arguing for dismissal of the infant K.O.'s application. In it, she stated, “The plain language of the statute indicates that the fund's provisions apply only to malpractice occurring during hospital deliveries.” Further, she argued, “[t]he fact that the legislative history of the fund indicates that it was intended to help to reduce the financial strain specifically on hospitals … further supports the conclusion that the Legislature intended the fund to specifically encompass only malpractice arising out of hospital deliveries.”

Judge Steinhardt, unconvinced by the State's arguments, determined that AliCare's denial of the child's claim was arbitrary and ordered the child enrolled in the State's compensation program. The judge explained in her opinion that “during the course of research into and debate surrounding Public Health Law ' 2999-g through 2999-j no one had a concern as to where the mother gave birth” and that “[t]he choice by his parents of his delivery venue should not penalize the infant and deprive him of legally authorized services for the rest of his life.” The judge recommended that the Legislature change the language in the law to omit the word “admission,” in order to fulfill what she considered the the intent of the law: to provide for New York's neurologically birth-injured children, no matter where their birth setting.

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Home Birth Does Not Disqualify Child from Receiving State Funds

A judge has determined that New York's statutorily created compensation fund providing assistance to neurologically birth-injured children was not meant only for babies born in hospitals, but also for those born at home, despite the fact that the statute creating the program refers to injuries occurring during a “delivery admission.”

The fund in question was created in 2011 by enactment of New York's Public Health Law
' 2999-g through 2999-j, as part of State Medicaid reforms. Children are eligible for monies from the fund if a jury or court finds that the claimant suffered a birth-related neurological injury during a “delivery admission” or “admissions.” However, State Supreme Court Justice Marsha Steinhardt noted in K.O. v. Lawsky, 500899/2015, that these terms were never fully defined in the law, leaving the question open as to whether the plaintiff in an underlying medical malpractice case could recover from the fund even though he was born outside the hospital setting. That question was brought to the court by both plaintiffs and defendants in K.O. v. Lawsky, because the settlement they had reached in the underlying medical malpractice case provided that the child would receive a total of $3 million in compensation, with $1.2 million coming from the medical care providers and the remainder coming from the state medical indemnity fund. This settlement was put in question when the child applied to the state through the fund's third-party administrator, AliCare, and was denied compensation because he did not suffer his injuries during the “course of a hospital admission, as required by the regulation.”

An attorney for the Department of Financial Services, Brenda Gibbs, filed an affirmation before Judge Steinhardt arguing for dismissal of the infant K.O.'s application. In it, she stated, “The plain language of the statute indicates that the fund's provisions apply only to malpractice occurring during hospital deliveries.” Further, she argued, “[t]he fact that the legislative history of the fund indicates that it was intended to help to reduce the financial strain specifically on hospitals … further supports the conclusion that the Legislature intended the fund to specifically encompass only malpractice arising out of hospital deliveries.”

Judge Steinhardt, unconvinced by the State's arguments, determined that AliCare's denial of the child's claim was arbitrary and ordered the child enrolled in the State's compensation program. The judge explained in her opinion that “during the course of research into and debate surrounding Public Health Law ' 2999-g through 2999-j no one had a concern as to where the mother gave birth” and that “[t]he choice by his parents of his delivery venue should not penalize the infant and deprive him of legally authorized services for the rest of his life.” The judge recommended that the Legislature change the language in the law to omit the word “admission,” in order to fulfill what she considered the the intent of the law: to provide for New York's neurologically birth-injured children, no matter where their birth setting.

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