The Neurologically Impaired Infant Fund

Despite all of our efforts to convince the politicians in Albany, the Neurologically Impaired Infant Fund ("NIIF") passed and is now part of our legal landscape. We are still not sure of the details of the NIIF and there are more questions than answers at this point: how will this new system work; who will run the NIIF; can we appeal denials; what will happen if the fund runs out of money.

From what we can understand thus far, IF a case involving a brain damaged baby is successful at trial (meaning the parents still have to bring a lawsuit, litigate the case to completion and then win at trial and through the appeal process) the culpable party will not have to pay for the future medical expenses of that child. Instead, the family would be placed into the NIIF which would determine what medical treatment was necessary for the child over the course of his/her life. The problems with this framework are many. First, this procedure requires the parents/guardians to continually cut through red-tape to get medical treatment. While this may be acceptable for a financially stable family with educated parents who can perpetually fight the system there are fears that children in a single parent household (where the parent may be overwhelmed with the 24 hour care required of a brain damaged baby) will not be able to endure the process to obtain approval of necessary care. Second, who is going to administer the fund and how will these children appeal any adverse decisions is a significant issue. The NIIF will have limited funding when you consider the lifelong expense of providing care for a brain damaged child. The history of bureaucracy teaches us that in this situation there is a tendency to deny applications for medical care to save money. Again, this will disproportionately impact children in lower income/single parent homes.

The NIIF was a political chip to appease the hospitals who claim that the costs of caring for brain damaged babies caused by medical malpractice in their facilities will run them out of business.  However, these children and families certainly did not ask for this and to do anything that adds to their burden (and benefits the wrongdoers) is patently unfair.  We need to create a system that rewards hospitals through lower insurance premiums for exemplary care.  An incentive based program is the only way to improve both the patient care and the bottom line.

NYS Budget Proposal

It appears that New York State will have its first on-time budget in nearly 30 years (the last one coming when Mario Cuomo was Governor).  However, this was not without a fight that almost cost New Yorker's the right to seek fair compensation if they were victims of medical malpractice.  The proposal that was put forward by the hospital and insurance industry included a cap of $250,000 on pain & suffering awards and created a "fund" to assist in payment of medical costs for brain damaged babies.  The inherent problem with this proposal was that it did nothing to "fix" the problems with Medicaid.  In fact, when analyzed this plan would actually cost Medicaid more money.  First, when a person is successful in recovering money in a lawsuit he/she must repay any funds spent by Medicaid - thus the lawsuit is adding money back into the Medicaid system (this is a good thing). If there is no incentive to bring a lawsuit there is no repayment triggered.  Second, the plan disproportionately impacts the poor, elderly and children.  This is because you can still seek recovery for lost earnings under the MRT proposal.  That means a Wall Street Stockbroker can still recover a large award for lost earnings while a retiree, a child or someone who is unemployed gets nothing.  Third, the MRT plan seeks to insulate the wrongdoers from the most egregious errors instead of correcting the problems that lead to malpractice.  New York Presbyterian Hospital revamped their Obstetrics Department and made simple, logical changes to the way they treated patients.  This program resulted in a 99% drop in medical malpractice payments (from approximately $28M to only $250,000) over a 6 year span.  They were able to reduce their expense to almost nothing because they gave patients better care - not because they unfairly capped damages.