New York is creating a Neurologically Impaired Infants’ Fund (“NIIF”) in medical malpractice cases involving children who sustained brain injuries at birth.
In prior posts I, II, and III we noted that the NIIF was part of a package of “medical malpractice reforms” urged by the Governor’s Medicaid Redesign Team. One of the proposals that did not pass was caps on non-economic damages, i.e., pain and suffering.
The NIIF law provides
- The creation of a fund, the New York State Medical Indemnity Fund for Birth Related Neurological Injuries.
- The fund will cover future medical costs. This requires a finding of medical negligence by either a jury, a judge, or by settlement.
- If an infant is qualified, then plaintiff will not receive an award of future medical costs from defendant. Instead, plaintiff will be reimbursed for medical expenses by the fund. Or plaintiff’s provider will be reimbursed by the fund. In other words, the fund will pay for medical costs as they are incurred.
- Private physicians will be reimbursed at “usual and customary” rates.
- Other health care services will be reimbursed at Medicaid rates.
- In the event that the fund’s liabilities equal or exceed 80% of its assets, new enrollment to the fund will be suspended. During that period, plaintiffs not yet enrolled in the fund will revert to the existing tort system to collect future medical expenses.
- The law is retroactive and covers all pending cases.
Various questions remain, such as
- Does plaintiff still have to prove future medical damages at trial?
- What happens if the fund “closes” prior to a plaintiff “qualifying”?
- Will the fund be able to pay future medical costs if it is underfunded? Who will secure its future obligations?
If you have been injured due to medical malpractice, please feel free to contact me for a free consultation at 800-581-1434 or write to email@example.com.
Mark E. Seitelman, 3/31/11, www.seitelman.com.