In­fant life­time care trust of­fers par­tial so­lu­tion to lat­est cri­sis

Baltimore Sun Sunday - - WORLD -

The de­ci­sion last year of a Bal­ti­more jury to award $229.6 mil­lion in con­nec­tion with a baby who suf­fered brain in­jury dur­ing birth at Johns Hop­kins Bayview con­tin­ues to have se­ri­ous ram­i­fi­ca­tions for Mary­land’s health care providers. The ex­tra­or­di­nary award, about five times what the plain­tiff’s at­tor­ney had orig­i­nally sought, was sub­se­quently re­duced, but it still ex­ceeds $200 mil­lion. Now, hos­pi­tals in­clud­ing Johns Hop­kins are strug­gling to cover mal­prac­tice in­sur­ance costs that have risen dra­mat­i­cally as a re­sult. Even the self-in­sured fear they will have to re­duce or elim­i­nate ob­stet­ric ser­vices, seek ma­jor rate in­creases and/or re­duce costs over­all (which could trans­late to lay­ing off hun­dreds) to cover rein­sur­ance pay­ments.

It’s a gen­uine health care emergency — and a par­tic­u­larly daunt­ing one con­sid­er­ing how mal­prac­tice is­sues have su­tured the Mary­land Gen­eral Assem­bly in knots be­fore.

There’s leg­is­la­tion on the ta­ble that could ad­dress part of the prob­lem with­out nec­es­sar­ily open­ing a po­lit­i­cal Pandora’s box of doc­tors ver­sus lawyers, health care ver­sus the rights of those who have suf­fered in­jury. In­stead of award­ing a lump sum for a vic­tim’s fu­ture med­i­cal costs (which is just one com­po­nent, al­beit a costly one, in any mal­prac­tice award), vic­tims would re­ceive a guar­an­tee of life­time care un­der a pro­posed Mary­land In­fant Life­time Care Trust. Hos­pi­tals that de­liver ba­bies would pay in, and the trust would then cover vic­tims’ med­i­cal bills. No more spec­u­la­tion about decades of fu­ture costs or risks of in­ad­e­quate cov­er­age. Hos­pi­tals say this ap­proach, al­ready em­ployed by the New York Med­i­cal In­dem­nity Fund would keep in­sur­ance costs down suf­fi­ciently to keep them in the birthing business.

There is a down­side, of course. Med­i­cal mal­prac­tice would re­main some­thing of a lot­tery for vic­tims: Some will be given gen­er­ous awards, oth­ers will get a rel­a­tive pit­tance. And Se­nate Bill 879 asks for no sac­ri­fice from med­i­cal mal­prac­tice lawyers, who would con­tinue to reap amaz­ing pay­days with their 40% take, which would still be based on the­o­ret­i­cal lump sum pay­ments.

In the par­lance of An­napo­lis, there is no tort re­form to be found here. Why? Pro­po­nents of­fer one rea­son: Be­cause the po­lit­i­cal land­scape of the Gen­eral Assem­bly for­bids it. Trial at­tor­neys have too much clout in the State House. Yet, as dis­ap­point­ing as that re­al­ity may be, hos­pi­tals need re­lief now, not down the road when the cri­sis has got­ten so horrible that even law­mak­ers sym­pa­thetic to the le­gal com­mu­nity would be will­ing to take ac­tion.

Not sur­pris­ingly, some trial at­tor­neys have al­ready raised ob­jec­tions. They ques­tion whether the trust would be ad­e­quately funded, whether vic­tims would end up with lesser health care, whether the trust amounts to a form of cost-shift­ing with ratepay­ers holding the bag. None of those ob­jec­tions ap­pears well-grounded. New York’s nine-year-old sys­tem has proven ef­fec­tive with ap­peals of claim de­nials prov­ing rel­a­tively rare.

In­deed, the pend­ing leg­is­la­tion pre­sumes that a vic­tim’s doc­tor is the gate­keeper of care, not the trust. As for cost-shift­ing, that seems some­thing of a red her­ring. Higher med­i­cal costs, in­clud­ing higher in­sur­ance costs, are al­ready cov­ered by in­sur­ance ratepay­ers, so every­one pays whether this re­form is ac­cepted or not. It’s up to Mary­land’s Health Ser­vices Cost Re­view Com­mis­sion to set rates based on costs, and the agency’s track record is good.

The pro­posal is not per­fect. We’d much rather see broader le­gal re­forms that both re­duce in­ci­dence of mal­prac­tice and re­move the lot­tery-like pay­days. But there is merit to sim­ply restor­ing some ra­tio­nal­ity to the sys­tem of com­pen­sat­ing those who suf­fer qual­i­fy­ing brain in­jury at birth, es­ti­mated to be about seven in­fants per year in Mary­land. It would re­duce cost with­out sac­ri­fic­ing care. Even trial lawyers must rec­og­nize that this rep­re­sents a very good deal for them. This is mal­prac­tice re­form that every­one should be able to live with.

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