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Some states push birth injury victims to no-fault fund

A controversial idea is spreading across the country that could affect the rights of infants harmed at birth by medical malpractice. Two states have set up a no-fault birth injury fund to pay victims, instead of giving parents the option of suing for damages, and a task force in a third state is recommending that legislators there do the same thing.

The task force was created by the Maryland General Assembly two years ago. Since then, it has issued two reports recommending a no-fault fund for victims of negligent birth injury that caused them a brain injury. Doctors groups and other advocates say that the fund would save victims’ families money and get them the compensation they need, while also reducing malpractice insurance costs for obstetricians.

They say that Maryland women are “facing a looming crisis” of a shortage of obstetricians, who are allegedly fleeing the state to avoid having to pay high premiums.

But opponents say a no-fault fund for birth injuries is a bad idea. They say it is too costly to create, and that it misses a big motivation for many malpractice suits: to hold the negligent physician accountable in public court. A trial lawyer association quoted in the Baltimore Sun disputes that there is not enough access to obstetrical care in Maryland.

Virginia and Florida have already set up similar funds. So far, Pennsylvania parents of birth injury victims still may pursue their malpractice claims in court. Whether it ends in a verdict or a settlement, litigation can uncover what happened and relieve the financial burden of caring for a disabled child.

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