Establishes the neurological impairment program governing the compensation of neurologically-impaired persons born in New York on or after January 1, 2011

(2) provide financial assistance to all families with impaired children who meet the entry criteria for this program, the vast majority of whom currently receive no compensation from the tort system;

(3) perform comprehensive reviews of the standard of care in all eligible cases, and utilize these findings to educate every obstetrical caregiver in the state in order to improve patient safety; and,

(4) Stabilize medical malpractice premiums for obstetrical care providers throughout the State.

The program would pay for currently uncovered costs of care needed by all eligible children with neurologic motor impairments while precluding lawsuits against health care providers by those children and their families. Since, in the absence of a neurologic motor impairment, disturbances of hearing, speech, sensation, cognition, communication, perception, and/or behavior (e.g., autism, mental retardation, learning disorders, attention deficit disorders, and/or seizure disorders) could not have been caused or prevented by the actions or inactions of a health care worker, they are covered if, but only if, the child has other significant, nonprogressive, motor impairment.

Summary of specific provisions

Section 1 sets forth the definitions to be used in accordance with this article.

Section 2 provides that the Neurologic Impairment Program of NYS (NIPNY) governs the compensation of all persons with a neurologic motor impairment born in New York State on or after January 1, 2009 and the remedies provided under the program exclude any other action for damages related to impairments or claims for damages unrelated to an impairment as defined in this article

Section 3 creates the NIPNY program within the Department of Health.

Section 4 establishes within the state office of taxation and finance, a trust fund to provide compensation pursuant to this article.

Section 5 sets forth the information to be contained in a claim filed with the Program, and empowers the claimant and the program to obtain medical records necessary for determination of claims. Further establishes a claims assistance unit to provide claimants with. information about the program and about this section in general.

Section 6 establishes a case manager program, similar to that found within the current Medicaid program, to provide comprehensive case management services to all eligible impaired persons and to assist parents, guardians and caretakers in navigating Program benefits and accessing necessary services.

Section 7 requires the program to determine whether the impaired newborn or child is eligible for the program and if so, the compensation to be provided.

Section 8 provides that the program may convene an appeals panel to review claims of ineligibility for the program.

Section 9 enumerates lifetime care expenses and compensation of the impaired person to be covered by the Program.

Section 10 bars any claim for compensation filed more than ten years after the birth of the newborn.

Section 11 encourages hospitals to provide notice of the Neurologic Impairment Program of NYS to its obstetric patients, on forms prepared by the program. Notice will also include information on the availability of government assistance programs for children with disabilities such as the Early Intervention Program, and the phone number of the program's claims assistance unit.

Section 12 enhances protections against poor care, through an examination of obstetrical and neonatal care in all eligible cases. The assessment program will determine if the standard of care has been met.

Section 13 authorizes the collection of assessments, including any assessment remaining unpaid by any health care provider, for deposit in the neurologic impairment trust fund in accordance with the provisions of this article.

Section 14 provides for the annual reporting of the Program.

Section 15 sets forth the effective date.

Existing law

None applicable.

Justification

The financial cost of raising a child with a neurologic impairment can be daunting. Families should be able to opt-in to a statewide program that will oversee not only the management of services for their child, but also the finances - above and beyond what a court of law would ever be able to provide. It has been shown that the sooner a child with cerebral palsy receives the necessary therapy and care, the more likely he/she is to cope with the impairment. waiting for a court to decide the amount a family should receive is counter intuitive when a child can receive services and financial support expeditiously through the NIPNY program. While the propensity may be to sue a physician, hospital or entire labor and delivery team when a case of neurologic impairment occurs, oftentimes these cases are time consuming, emotional and fail to rely upon sound medical and scientific evidence pinpointing the exact cause of the neurologic birth injury. It is important to understand the root of cerebral palsy and to know that this injury is not due to the lack of obstetrical intervention but rather due to circumstances beyond the control of any OB-GYN.

NEONATAL ENCEPHALOPATHY (NNE)

Neonatal encephalopathy (NNE) is a condition used for term and near-term infants. It is defined clinically on the basis of a constellation of findings to include a combination of abnormal consciousness, tone and reflexes, feeding, respiration, or seizures and can result from myriad conditions. NNE mayor may not result in permanent neurologic impairment. However, the pathway from an intrapartum hypoxic-ischemic injury) (e.g. lack of oxygen to the neonate) to subsequent cerebral palsy must progress through NNE.

In 2003, The American college of Obstetricians and Gynecologists, in conjunction with the American Academy of Pediatrics released a study entitled Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology. This report, endorsed by the Centers for Disease Control and Prevention (CDC), the March of Dimes Birth Defects Foundation the National Institutes of Health, as well as several other key organizations, concluded that the majority of newborn brain injury cases do not occur during labor and delivery. Rather, most instances of neonatal encephalopathy (NNE) (DEFINITION) and cerebral palsy are attributable to events occurring before labor begins.

According to the report, less than ten percent of cases of neurological impairment in. newborns are the result of events occurring in labor and, of these, the majority are not preventable. Very rarely can anything be done during the labor process to prevent the devastating outcome of a neurologic impairment. Intrapartum signs compatible with damaging hypoxia may have had either antenatal or intrapartum origins - not influenced by obstetrical interventions.

Several risk factors are associated with NNE, including a family history of seizure or neurologic disorders, or a personal history of infertility treatments, placental or uterine rupture, maternal thyroid disease, severe preecla mpsia, intrauterine growth restriction or the delivery of a low birth weight baby.

CEREBRAL PALSY According to the National Institute of Neurological Disorders and Stroke (NINDS), the term cerebral palsy refers to anyone of a number of neurological disorders that appear in infancy or early childhood and permanently affect body movement and muscle coordination but are not progressive. Even though cerebral palsy affects muscle movement, it is not caused by problems in the muscles or nerves but rather by abnormalities in parts of the brain that control muscle movements. The majority of children with cerebral palsy are born with it, although it may not be detected until months or years later. The early signs of cerebral palsy usually appear before a child reaches 3 years of age. The most Common are a lack of muscle coordination when performing voluntary movements (ataxia); stiff or tight muscles and exaggerated reflexes (spasticity); walking with one foot or leg dragging; walking on the toes, a crouched gait, or a "scissored" gait; and muscle tone that is either too stiff or too floppy. A small number of children have cerebral palsy as the result of brain damage in the first few months or years of life, brain infections such as bacterial meningitis or viral encephalitis, or head injury from a motor vehicle accident, a fall, or child abuse.

Cerebral palsy Cannot be cured, but treatment will often improve a child's capabilities. Many children go on to enjoy near-normal adult lives if their disabilities are properly managed. In general, the earlier treatment begins the better chance children have of overcoming developmental disabilities or learning new ways to accomplish the tasks that challenge them. Treatment may include physical and occupational therapy, speech therapy, drugs to control seizures, relax muscle spasms, and alleviate pain; surgery to correct anatomical abnormalities or release tight muscles; braces and other orthotic

devices; wheelchairs and rolling walkers; and communication aids such as computers with attached voice synthesizers.

Epidemiologic studies of cerebral palsy prevalence in China, Malta, Slovenia and India demonstrate rates identical to those of developed countries.

AVERAGE LIFE EXPECTANCY As the severity of the disease varies greatly, there is no specific life expectancy of an individual with cerebral palsy. However, although increased risk of death can occur after the age of 50, most sources indicate that individuals can lead long, fulfilling lives until they are nearly 70 years of age. Those with mild cerebral palsy can often be expected to have a life expectancy just slightly lower than that of the general population. According to the United Cerebral Palsy Research and Education Foundation, 87 to 93 percent of children born with cerebral palsy now survive into adulthood.

COST OF CLOSED CLAIMS For a 20 year period spanning from 1985 to 2005, the total indemnity for the OB-GYN specialty was $1.44 billion. The average indemnity per closed paid file was $350,680. However, the average indemnity for birth related injuries was nearly twice as high - $618,955, with the total indemnity reaching $845 million. Compared to other specialties, both high-risk and low-risk, the total loss indemnity for OB-GYNs was the highest and the average only second to neurosurgery.

MALPRACTICE AWARDS AND INSURANCE COSTS In 2002, the National law Journal listed the top 10 highest malpractice verdicts in the U.S. Six of the 10 were from New York State and were neurologically impaired infant cases. In January 2005, a Long Island jury awarded $112 million in an obstetric malpractice case. This was on the heels of an $80 million case in October 2004 and a $91 million case the previous December.

Prior legislative history

S.7748 of 2007-2008

Fiscal implications

To be determined.

Effective date

This act shall take effect January 1, 2011 provided, however, that any rules or regulations necessary to effectuate the purposes of this act may be promulgated prior to such effective date.