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Birth Injuries – The Medical Indemnity Fund

The Medical Indemnity Fund of New York was established to provide funding for future healthcare costs of infants in medical malpractice claims who sustained neurological injuries as a result of medical malpractice. The Medical Indemnity Fund, which was established in 2011, serves two primary functions; to pay for the costs of meeting a "qualified plaintiff's" healthcare needs throughout their lifetime; and to reduce the costs associated with medical malpractice litigation.

The fund absolves defendants of all obligations to pay future medical costs related to a birth injury. For example, if a plaintiff receives a $5 million judgment for future medical bills, the defendant is not required to pay that amount. If the fund does not relieve private insurance companies of their obligations, it will pay such expenses as they arise.

You can still file a lawsuit through the Medical Indemnity Fund. Working with an experienced birth injury attorney is most likely in your best interests. We will represent you throughout the entire process at DeFrancisco & Falgiatano. Once it has been resolved, and if applicable, our medical malpractice lawyers will assist you in obtaining all compensation available to you under the Medical Indemnity Fund.

We are proud to represent clients whose children suffered birth injuries as a result of medical malpractice at DeFrancisco & Falgiatano. We are seeking full compensation for all injuries. We will discuss with you your child's eligibility for benefits under New York's Medical Indemnity Fund, and we are prepared to take whatever action is necessary to seek all eligible benefits.

So, how does the Fund function? All future medical expenses for newborns who are found by a jury to have suffered neurological injury or who have settled a lawsuit would be covered by the Fund. Families can still sue the responsible physician, but the settlement will not account for future medical expenses because those will be covered by the Fund. The funds for the Fund will come from the Health Care Reform Act.

The Fund intends to cut costs in two ways. First, supporters of the Fund believe that patients will no longer be "over-paid" for future medical costs in settlement proceedings, which frequently overestimate those costs. Second, the Fund would save Medicaid money by not having to pay for patients who have received a settlement and now have their future medical costs covered by the Fund.

A birth-related injury is defined as “an injury to the brain or spinal cord of a live infant caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, resuscitation, or by other medical services provided or not provided during delivery admission that rendered the infant with a permanent and substantial motor impairment or with a developmental disability... or both." It should be noted that the law only applies to birth-related injuries.

"Qualifying health care costs," in turn, are defined as "future medical, hospital, surgical, nursing, dental, rehabilitation, custodial, durable medical equipment, home modifications, assistive technology, vehicle modifications, prescription and non-prescription medications, and other health care costs actually incurred for services rendered to and supplies utilized by qualified plaintiffs, as determined by their treating physicians, physician assistants, or nurse practitioners . . .”

As a result, the legislation covers all of the special damages (with the exception of lost earnings) that are typically included in a plaintiff's Life Care plan. These items, which frequently account for the majority of an award in a case involving neurological impairment at birth, will now be paid by the Medical Indemnity Fund rather than by defendants or their insurers.

A "Qualified Plaintiff" is a person who has been found by a jury or a court to have suffered a birth-related neurological injury as a result of medical malpractice, or who has suffered such an injury and settled his or her claim. If you have a question whether you are a qualified Plaintiff, call our medical malpractice lawyers today.

Qualifying health care costs will be calculated "on the basis of 100% of the usual and customary rates, as defined by the Commissioner in regulation" for services provided in private physician practices. Payments for all other services "shall be calculated on the basis of Medicaid rates of reimbursement, or, in the absence of such rates, as defined by the Commissioner in regulation."

As a result, while future medicals and the like will still be included in a settlement agreement or presented to a jury as items of damages, they will now be paid from the Medical Indemnity Fund.

Health insurers (other than Medicare and Medicaid) will now be the primary payers of qualified plaintiffs' qualifying health care costs, with costs paid from the Fund only to the extent that health insurers or other collateral source payers are not otherwise obligated to make payments. Health insurers who make such payments will have no lien against the Fund or any other person or entity.

The Fund will pay or reimburse costs incurred to meet the health care needs of a "qualified plaintiff" as determined by a physician, physician assistant, or nurse practitioner, and as otherwise defined in regulation by the Commissioner of Health, for:

  • medical attention
  • hospitalized care
  • surgical treatment
  • nursing assistance
  • dental treatment
  • rehabilitation services
  • custody & control
  • long-lasting medical equipment
  • certain home improvements
  • certain vehicle modifications that use assistive technology
  • medication, both prescription and non-prescription
  • other health care costs for services rendered to, and supplies utilized by, enrollees.

A "qualified plaintiff" who enrolls will remain in the Fund for the rest of his or her life and will not be affected by a suspension in enrollment. A suspension of this type would occur only if the Fund's estimated liabilities, the sum of all eligible costs for all enrollees in a given year, equaled or exceeded 80% of its assets. If this occurs, enrollment in the Fund will be suspended until either an adequate deposit of funds is made or an actuarial analysis determines that the Fund's estimated liabilities are less than 80% of its assets, at which point enrollment will be reinstated by the Fund Administrator.

Our medical malpractice lawyers have extensive experience handling birth injury cases. We have also helped many children get entry into the Medical Indemnity Fund.

At DeFrancisco & Falgiatano, we represent injured clients and their families throughout Upstate New York, including Syracuse, Rochester, Albany, Buffalo, Elmira, Binghamton, Auburn, Ithaca, Oswego, Norwich, Herkimer, Delhi, Cooperstown, Cortland, Lowville, Oneida, Watertown, Utica, Canandaigua, Wampsville, Lyons, and surrounding areas. Please call us at 833-200-2000 or contact us via our online form to discuss your case.

Client Reviews
"We were very impressed with how Jeff DeFrancisco represented us at trial and we were extremely happy when the jury found in our favor." D.M., Auburn, NY
"I suffered a serious injury as a result of medical malpractice. My husband and I retained Jeff DeFrancisco to assist us in this case. We were extremely happy with his representation and highly recommend him." Kelley R., Syracuse, NY
Since the insurance company was unwilling to settle the matter my case ultimately went to trial. At trial Jeff DeFrancisco did an absolutely amazing job by obtaining a very favorable result for me." T.H., Oneida, NY
"I highly recommend DeFrancisco & Falgiatano - Charlie represented me for a medical malpractice case. He is the best of the best. He is friendly and I am very happy with the representation he provided." Roger N., Oneida, NY