STATE OF NEW YORK ________________________________________________________________________ 9215 IN SENATE May 12, 2022 ___________ Introduced by Sen. COONEY -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to neurological inju- ries The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 2999-g of the public health law, as added by 2 section 52 of part H of chapter 59 of the laws of 2011, is amended to 3 read as follows: 4 § 2999-g. Purpose of this title. Creation of the New York state 5 medical indemnity fund. There is hereby created the New York state 6 medical indemnity fund (the "fund"). The purpose of the fund is to 7 provide a funding source for future health care costs associated with 8 [~~birth related~~] neurological injuries, in order to reduce premium costs 9 for medical malpractice insurance coverage. 10 § 2. Section 2999-h of the public health law, as added by section 52 11 of part H of chapter 59 of the laws of 2011, subdivision 1 as amended by 12 chapter 517 of the laws of 2016, subdivision 3 as amended by chapter 4 13 of the laws of 2017 and subdivision 4 as amended by section 1 of part K 14 of chapter 57 of the laws of 2019, is amended to read as follows: 15 § 2999-h. Definitions. As used in this title, unless the context or 16 subject matter requires otherwise: 17 1. "Birth-related neurological injury" means an injury to the brain or 18 spinal cord of a live infant caused by the deprivation of oxygen or 19 mechanical injury occurring in the course of labor, delivery or resusci- 20 tation, or by other medical services provided or not provided during 21 delivery admission, that rendered the infant with a permanent and 22 substantial motor impairment or with a developmental disability as that 23 term is defined by section 1.03 of the mental hygiene law, or both. This 24 definition shall apply to live births only. 25 2. "Fund" means the New York state medical indemnity fund. 26 3. "Neurological injury" means an injury to the brain or spinal cord 27 of a person occurring in the course of the provision of medical 28 services, that rendered the person with a permanent and substantial EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15834-01-2

S. 9215 2 1 motor impairment or with a disability that: (i) results in similar 2 impairment of general intellectual functioning or adaptive behavior to 3 that of intellectually disabled persons or (ii) requires treatment and 4 services similar to those required for such person; and (iii) has 5 continued or can be expected to continue indefinitely; and (iv) consti- 6 tutes a substantial handicap to such person's ability to function 7 normally in society. 8 4. "Qualifying health care costs" means the future medical, hospital, 9 surgical, nursing, dental, rehabilitation, habilitation, respite, custo- 10 dial, durable medical equipment, home modifications, assistive technolo- 11 gy, vehicle modifications, transportation for purposes of health care 12 related appointments, prescription and non-prescription medications, and 13 other health care costs actually incurred for services rendered to and 14 supplies utilized by qualified plaintiffs, which are necessary to meet 15 their health care needs, as determined by their treating physicians, 16 physician assistants, or nurse practitioners and as otherwise defined by 17 the commissioner in regulation. 18 [4.] 5. "Qualified plaintiff" means every plaintiff or claimant who 19 (i) has been found by a jury or court to have sustained a birth-related 20 neurological injury or a neurological injury as the result of medical 21 malpractice, or (ii) has sustained a birth-related neurological injury 22 or a neurological injury as the result of alleged medical malpractice, 23 and has settled his or her lawsuit or claim therefor; and (iii) has been 24 ordered to be enrolled in the fund by a court in New York state. 25 § 3. Subdivision 6 of section 2999-j of the public health law, as 26 amended by section 3 of part K of chapter 57 of the laws of 2019, is 27 amended to read as follows: 28 6. (a) Every settlement agreement for claims arising out of a 29 plaintiff's or claimant's birth related neurological injury or a 30 plaintiff's or claimant's neurological injury subject to this title, and 31 that provides for the payment of future medical expenses for the plain- 32 tiff or claimant, shall provide that all payments for future medical 33 expenses shall be paid in accordance with this title in lieu of that 34 portion of the settlement agreement that provides for payment of such 35 expenses. The plaintiff's or claimant's future medical expenses shall be 36 paid in accordance with this title. When such a settlement agreement 37 does not so provide, the court shall direct the modification of the 38 agreement to include such term as a condition of court approval. 39 (b) In any case where the jury or court has made an award for future 40 medical expenses arising out of a birth related neurological injury or a 41 neurological injury, any party to such action or person authorized to 42 act on behalf of such party may make application to the court that the 43 judgment reflect that, in lieu of that portion of the award that 44 provides for payment of such expenses, the future medical expenses of 45 the plaintiff shall be paid out of the fund in accordance with this 46 title. Upon a finding by the court that the applicant has made a prima 47 facie showing that the plaintiff is a qualified plaintiff, the court 48 shall ensure that the judgment so provides. 49 § 4. This act shall take effect on the ninetieth day after it shall 50 have become a law.

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