Med Mal News

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.”