As the founding, senior partner of Schochor, Federico and Staton, P.A., I recently testified before a Joint Committee of the Maryland General Assembly opposing House Bill #377 which would create a “no fault” fund in Maryland for infants brain injured at birth. I testified on behalf of these brain injured infants and their families to preserve their constitutionally guaranteed right to trial by jury; to continue to hold negligent doctors and hospitals legally and financially accountable and responsible for their negligence, and to provide adequate and necessary compensation to injured infants and their families so they can receive the finest in medical care and the best quality of life possible under these tragic circumstances.
Currently, the law in Maryland provides brain injured infants and their families with a trail by jury to determine if the infant’s brain injury was due to negligent conduct on the part of the doctors and/or hospital personnel. Juries hear testimony from Board Certified medical experts and consider the facts and circumstances of each case, including the specific damages suffered by each individual infant. Damages include pain and suffering for a lifetime as well as past, present and future medical and associated needs of the baby. Only if the jury finds the doctors and/or hospital negligent in causing the brain injury, will it consider damages and award proper and adequate compensation. Trail by jury under these circumstances has been guaranteed to all Maryland citizens for more than 200 years and is guaranteed by our Federal Constitution and our State Constitution.
Proposed House Bill #377 strips these brain injured infants and their families of their right to a trail by jury. Under the Bill, the families would file a claim in a newly created agency (more State bureaucracy) and ultimately have their cases decided by an Administrative Law Judge and not a jury and Trial Judge. Compensation available under the proposed law is severely limited and will not adequately compensate these families.
Further, the proposed legislation would not effectively hold the doctors and hospitals responsible for their negligence and have them pay for the damages they have inflicted. In effect, the Bill would pass on the cost of the funding to all Maryland patients who utilize hospital services in Maryland. In other words, the hospitals and doctors responsible would not compensate these families at all. The patients who utilize hospital services in Maryland would be responsible for paying these families. The net result would be that hospitals and doctors would not be held responsible and would not compensate these victims. This law represents an additional tax levied upon the citizens of Maryland who use any hospital services in the State of Maryland.
Additionally, Maryland hospitals already have been granted “not for profit” status in Maryland. Therefore, they already pay no real estate taxes and pay no income taxes for funds earned in connection with hospital services. As well, hospitals enjoy “charitable immunity” status in Maryland. Therefore, they are responsible to pay for their negligence only up to the limits of their insurance policies. They are not required to pay anything above their insurance policies.
In sum, the proposed legislation would strip families of brain injured infants from their constitutionally protected right to a trail by jury; would fail to adequately compensate families for the injuries and damages they have suffered; would absolve doctors and hospitals of any and all responsibility for their negligence; and all damages would be paid for by Maryland citizens instead of the doctors and hospitals responsible for inflicting these life altering damages.
Clearly, the Bill is bad for Marylanders.