Gov. Andrew M. Cuomo didn’t get everything he wanted in his first budget battle as head of state government. Patient advocates fought back Cuomo’s efforts to have a cap imposed on awards in medical malpractice and Denver assault cases, for instance, but he did prevail in overseeing the creation of a fund to pay medical expenses for some birth injuries caused by medical errors.
Proponents of the measure say it will allow medical costs for babies neurologically damaged by medical mistakes to be paid annually; parents and guardians can still pursue medical malpractice cases based on emotional distress and other damages. The law goes into effect on Oct. 1 of this year.
Cuomo’s Medicaid reform adviser, Jason Helgerson, says between 150 and 200 babies are expected to qualify for access to the fund each year.
Helgerson said the fund will be a better vehicle for providing medical care costs for injured infants than judges and juries.
“Almost always, the court is going to be incorrect because it is very difficult to project the length of a child’s life, and the changes in technology or treatment,” Helgerson said. “The court tends to be quite conservative and, as a result, we think that courts tend to over-allocate for the children’s health-care needs. When you do it on a pay-as-you-go basis, like this approach does, we think we will save money.”
Under the new law, the fund will pay for “birth-related neurological injuries,” defined as brain or spinal cord injuries caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation. The injury leaves the baby with a permanent, “substantial motor impairment or with a developmental disability.”
While the law might sound like a good idea to many, at least one aspect bothers many patient advocates: the fund will pay for care at prevailing Medicaid rates, meaning those babies aren’t going to always get the best of care; a level of care most would say they’re more than entitled to.