S4997 HANNON¦¦¦¦¦¦¦¦¦¦¦¦¦¦ No Same as
ON FILE: 05/02/07 Public Health Law
TITLE....Enacts the New York birth-related neurological impairment compensation act
Add Art 20-B SS2021 - 2037, Pub Health L
Enacts the New York birth-related neurological injury compensation act; provides a program whereby families of infants who are neurologically injured at birth would have an option for compensation other than by suing the physician.
STATE OF NEW YORK ________________________________________________________________________ 4997 2007-2008 Regular Sessions IN SENATE April 24, 2007 ___________ Introduced by Sen. HANNON -- 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 enacting the New York birth-related neurological injury compensation act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The public health law is amended by adding a new article 2 20-B to read as follows: 3 ARTICLE 20-B 4 NEW YORK BIRTH-RELATED NEUROLOGICAL 5 INJURY COMPENSATION ACT 6 Section 2021. Short title. 7 2022. Definitions. 8 2023. New York birth-related neurological injury compensation 9 program; exclusive remedy; exception. 10 2024. Filing of claims; review by state board for professional 11 medical conduct; filing of responses; determination of 12 established claims by administrative law judge. 13 2025. Tolling of statute of limitations. 14 2026. Hearing; parties. 15 2027. Interrogatories and depositions. 16 2028. Determination of claims; presumption; findings of adminis- 17 trative law judge binding on participants; medical advi- 18 sory panel. 19 2029. Administrative law judge awards for birth-related neuro- 20 logical injuries; notice of award. 21 2030. Limitation on claims. 22 2031. Scope. 23 2032. Birth-related neurological injury compensation fund. 24 2033. Board of directors; appointment; vacancies; term. 25 2034. Plan of operation. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [
S. 4997 2 1 2035. Funds to be held in restricted cash account. 2 2036. Assessments. 3 2037. Actuarial investigation, valuations, gain/loss analysis; 4 notice if assessments prove insufficient. 5 § 2021. Short title. The provisions of this article shall be known and 6 may be cited as the "New York birth-related neurological injury compen- 7 sation act". 8 § 2022. Definitions. As used in this article: 9 1. "Birth-related neurological injury" means a non-progressive impair- 10 ment of brain or spinal cord which occurred or which could have occurred 11 during pregnancy, during labor, during delivery or in the immediate 12 resuscitation period after delivery which results in a significant 13 impairment in central nervous system function rendering the infant 14 substantially handicapped. The determination of whether a substantial 15 handicap exists shall be made by the state board of professional medical 16 conduct. This term shall apply only to live births, and shall not 17 include disabilities caused by congenital abnormalities including, but 18 not limited to: genetic, developmental or teratogenic causes. 19 2. "Claimant" means any person who files a claim pursuant to section 20 two thousand twenty-four of this article for compensation for a birth- 21 related neurological injury to an infant. Such claims may be filed by 22 any legal representative on behalf of an injured infant; and, in the 23 case of a deceased infant, the claim may be filed by an administrator, 24 executor, or other legal representative. 25 3. "Participating physician" means a physician licensed in this state 26 to practice medicine, who practices obstetrics or performs obstetrical 27 services either full or part time and who had in force an agreement with 28 the state board for professional medical conduct whereby the physician 29 agreed to submit to review by the state board for professional medical 30 conduct as required by subdivision two of section two thousand twenty- 31 four of this article. 32 4. "Participating hospital" means a hospital licensed in New York 33 which at the time of the injury had in force an agreement whereby the 34 hospital agreed to submit to review of its obstetrical service, as 35 required by subdivision three of section two thousand twenty-four of 36 this article. 37 5. "Program" means the New York birth-related neurological injury 38 compensation program established by this article. 39 § 2023. New York birth-related neurological injury compensation 40 program; exclusive remedy; exception. 1. There is hereby established the 41 New York birth-related neurological injury compensation program. 42 2. The rights and remedies granted in this article to an infant on 43 account of a birth-related neurological injury shall exclude all other 44 rights and remedies of such infant, his or her personal representative, 45 parents, dependents or next of kin, at common law or otherwise arising 46 out of or related to a medical malpractice claim with respect to such 47 injury. 48 3. Notwithstanding anything to the contrary in this section, a civil 49 action shall not be foreclosed against a physician or a hospital where 50 there is clear and convincing evidence that such physician or hospital 51 intentionally or willfully caused or intended to cause a birth-related 52 neurological injury, provided that such suit is filed prior to and in 53 lieu of payment of an award under this article. Such suit shall be filed 54 before the award of the board becomes conclusive and binding. 55 § 2024. Filing of claims; review by state board for professional 56 medical conduct; filing of responses; determination of established
S. 4997 3 1 claims by administrative law judge. 1. (a) In all claims filed under 2 this article, the claimant shall file with the administrative law judge 3 a petition, setting forth the following information: 4 (i) The name and address of the legal representative and the basis for 5 his or her representation of the injured infant; 6 (ii) The name and address of the injured infant; 7 (iii) The name and address of any physician providing obstetrical 8 services who was present at the birth and the name and address of the 9 hospital at which the birth occurred; 10 (iv) A description of the disability for which claim is made; 11 (v) The time and place where the injury occurred; 12 (vi) A brief statement of the facts and circumstances surrounding the 13 injury and giving rise to the claim; 14 (vii) All available relevant medical records relating to the person 15 who allegedly suffered a birth-related neurological injury and an iden- 16 tification of any unavailable records known to the claimant and the 17 reasons for their unavailability; 18 (viii) Appropriate assessments, evaluations, and prognoses and such 19 other records and documents as are reasonably necessary for the determi- 20 nation of the amount of compensation to be paid to, or on behalf of, the 21 injured infant on account of a birth-related neurological injury; 22 (ix) Documentation of expenses and services incurred to date, which 23 indicates whether such expenses and services have been paid for, and if 24 so, by whom; and 25 (x) Documentation of any applicable private or governmental source of 26 services or reimbursement relative to the alleged impairments. 27 (b) The claimant shall furnish the administrative law judge with as 28 many copies of the petition as required for service upon the program, 29 any physician and hospital named in the petition, and the state board 30 for professional medical conduct, along with a fifteen dollar filing 31 fee. Upon receipt of the petition, the administrative law judge shall 32 immediately serve the program by service upon the agent designated to 33 accept service on behalf of the program in the plan of operation by 34 registered or certified mail, and shall mail copies of the petition to 35 any physician and hospital named in the petition, the state board for 36 professional medical conduct and the department. 37 2. Upon receipt of the petition, the state board for professional 38 medical conduct shall evaluate the claim, and if it determines that 39 there is reason to believe that the alleged injury resulted from, or was 40 aggravated by, substandard care on the part of the physicians, it shall 41 take any appropriate action. 42 3. Upon receipt of the petition, the department shall evaluate the 43 claim, and if it determines that there is reason to believe that the 44 alleged injury resulted from, or was aggravated by, substandard care on 45 the part of the hospital at which the birth occurred, it shall take any 46 appropriate action. 47 4. The program shall have thirty days from the date of service in 48 which to file a response to the petition, and to submit relevant written 49 information relating to the issue of whether the injury alleged is a 50 birth-related neurological injury, within the meaning of this article. 51 5. Upon the establishment of a claim by the state board for profes- 52 sional medical conduct, such claim shall be advanced to an administra- 53 tive law judge, authorized to hear and pass upon all claims filed pursu- 54 ant to this article. 55 § 2025. Tolling of statute of limitations. The statute of limitations 56 with respect to any civil action that may be brought by or on behalf of
S. 4997 4 1 an injured infant allegedly arising out of or related to a birth-related 2 injury shall be tolled by the filing of a claim in accordance with this 3 section, and the time such claim is pending shall not be computed as 4 part of the period within which such civil action may be brought. 5 § 2026. Hearing; parties. 1. Immediately after such petition has been 6 received, the administrative law judge shall set the date for a hearing, 7 which shall be held no sooner than forty-five days and no later than one 8 hundred twenty days after the filing of a petition, and shall notify the 9 parties thereto of the time and place of such hearing. The hearing shall 10 be held in the city or county where the injury occurred, or in a contig- 11 uous city or county, unless otherwise agreed to by the parties and 12 authorized by the administrative law judge. 13 2. The parties to the hearing required under this section shall 14 include the claimant and the program. 15 § 2027. Interrogatories and depositions. Any party to a proceeding 16 under this article may, upon application to the administrative law judge 17 setting forth the materiality of the evidence to be given, serve inter- 18 rogatories or cause the depositions of witnesses residing within or 19 without the state to be taken, the costs to be taxed as expenses 20 incurred in connection with the filing of a claim, in accordance with 21 subdivision two of section two thousand twenty-nine of this article. 22 Such depositions shall be taken after giving notice and in the manner 23 prescribed by law, for depositions in actions at law, except that they 24 shall be filed with the administrative law judge. 25 § 2028. Determination of claims; presumption; findings of administra- 26 tive law judge binding on participants; medical advisory panel. 1. The 27 administrative law judge shall determine, on the basis of the evidence 28 presented to it, the following issues: 29 (a) Whether the injuries claimed are birth-related neurological inju- 30 ries as defined in section two thousand twenty-two of this article. A 31 rebuttable presumption shall arise that the injury alleged is a birth- 32 related neurological injury where it has been demonstrated, to the 33 satisfaction of the administrative law judge, that the infant has 34 sustained a brain or spinal cord injury caused by oxygen deprivation or 35 mechanical injury, and that the infant was thereby rendered permanently 36 nonambulatory, aphasic and incontinent. 37 If either party disagrees with such presumption, that party shall have 38 the burden of proving that the injuries alleged are not birth-related 39 neurological injuries within the meaning of this article. 40 (b) Whether obstetrical services were delivered by a participating 41 physician at the birth. 42 (c) Whether the birth occurred in a participating hospital. 43 (d) How much compensation, if any, is awardable pursuant to section 44 two thousand twenty-nine of this article. 45 (e) If the administrative law judge determines that the injury alleged 46 is not a birth-related neurological injury within the meaning of this 47 article, that obstetrical services were not delivered by a participating 48 physician at the birth, or that the birth did not occur in a participat- 49 ing hospital, it shall cause a copy of such determination to be sent 50 immediately to the parties by registered or certified mail. 51 (f) By becoming a participating physician or hospital each participant 52 is bound for all purposes including any suit at law against a partic- 53 ipating physician or participating hospital, by the finding of the 54 administrative law judge (or any appeal therefrom) with respect to 55 whether such injury is birth-related.
S. 4997 5 1 2. The deans of the medical schools of the state shall develop a plan 2 whereby each claim filed with the administrative law judge is reviewed 3 by a panel of three qualified and impartial physicians. This panel shall 4 file its report and recommendations as to whether the injury alleged is 5 a birth-related neurological injury within the meaning of this article 6 with the administrative law judge at least ten days prior to the date 7 set for hearing pursuant to section two thousand twenty-six of this 8 article. At the request of the administrative law judge, at least one 9 member of the panel shall be available to testify at the hearing. The 10 administrative law judge must consider, but shall not be bound by, the 11 recommendation of the panel. 12 § 2029. Administrative law judge awards for birth-related neurological 13 injuries; notice of award. Upon determining that an infant has sustained 14 a birth-related neurological injury, that obstetrical services were 15 delivered by a participating physician at the birth, and that the birth 16 occurred in a participating hospital, the administrative law judge shall 17 make an award providing compensation for the following items relative to 18 such injury: 19 1. Actual medically necessary and reasonable expenses of medical and 20 hospital, rehabilitative, residential and custodial care and service, 21 special equipment or facilities, and related travel. However, such 22 expenses shall not include: 23 (a) Expenses for items or services that the infant has received, or is 24 entitled to receive, under the laws of any state or the federal govern- 25 ment except to the extent prohibited by federal law; 26 (b) Expenses for items or services that the infant has received, or is 27 contractually entitled to receive, from any prepaid health plan, health 28 maintenance organization, or other private insuring entity; 29 (c) Expenses for which the infant has received reimbursement, or for 30 which the infant is entitled to receive reimbursement, under the laws of 31 any state or federal government except to the extent prohibited by 32 federal law; and 33 (d) Expenses for which the infant has received reimbursement, or for 34 which the infant is contractually entitled to receive reimbursement, 35 pursuant to the provisions of any health or sickness insurance policy or 36 other private insurance program. 37 2. Expenses of medical and hospital services under subdivision one of 38 this section shall be limited to such charges as prevail in the same 39 community for similar treatment of injured persons of a like standard of 40 living when such treatment is paid for by the injured person. 41 3. Loss of earnings from the age of eighteen. An infant found to have 42 sustained a birth-related neurological injury shall be conclusively 43 presumed to have been able to earn income from work from the age of 44 eighteen through the age of sixty-five, if he or she had not been 45 injured, in the amount of fifty percent of the average weekly wage in 46 the state of workers in the private, nonfarm sector. 47 4. Reasonable expenses incurred in connection with the filing of a 48 claim under this article, including reasonable attorneys' fees, which 49 shall be subject to the approval and award of the administrative law 50 judge. 51 5. A copy of the award shall be sent immediately by registered or 52 certified mail to the parties. 53 § 2030. Limitation on claims. Any claim under this article that is 54 filed more than ten years after the birth of an infant alleged to have a 55 birth-related neurological injury is barred.
S. 4997 6 1 § 2031. Scope. This article applies to all claims for birth-related 2 neurological injuries occurring in this state on or after January first, 3 two thousand seven. This article shall not apply to disability or death 4 caused by genetic or congenital abnormalities, or disability or death 5 caused by birth at home unattended by a physician. 6 § 2032. Birth-related neurological injury compensation fund. There is 7 established the birth-related neurological injury compensation fund to 8 finance the New York birth-related neurological injury compensation 9 program created by this article. 10 § 2033. Board of directors; appointment; vacancies; term. 1. The 11 birth-related neurological injury compensation program shall be governed 12 by a board of five directors. 13 2. Directors shall be appointed for a term of three years or until 14 their successors are appointed and have qualified. 15 3. (a) The directors shall be appointed by the governor as follows: 16 (i) one citizen representative; 17 (ii) one representative of participating physicians; 18 (iii) one representative of participating hospitals; 19 (iv) one representative of liability insurers; and 20 (v) one representative of physicians other than participating physi- 21 cians. 22 (b) The governor may select the representative of the participating 23 physicians from a list of at least three names to be recommended by the 24 American College of Obstetricians and Gynecologists; the representative 25 of participating hospitals from a list of at least three names to be 26 recommended by the health care association of New York state; the repre- 27 sentative of liability insurers from a list of at least three names, one 28 of which is recommended by the American Insurance Association, one by 29 the Alliance of American Insurers, and one by the National Association 30 of Independent Insurers; and the representative of physicians other than 31 participating physicians from a list of at least three names to be 32 recommended by the Medical Society of New York. In no case shall the 33 governor be bound to make any appointment from among the nominees of the 34 respective associations. 35 4. The governor shall promptly notify the association, which may make 36 nominations, of any vacancy other than by expiration among the members 37 of the board representing a particular interest and like nominations may 38 be made for the filling of the vacancy. 39 5. The directors shall act by majority vote with five directors 40 constituting a quorum for the transaction of any business or the exer- 41 cise of any power of the program. The directors shall serve without 42 salary, but each director shall be reimbursed for actual and necessary 43 expenses incurred in the performance of his or her official duties as a 44 director of the program. The directors shall not be subject to any 45 personal liability with respect to the administration of the program. 46 6. The board established by this section shall have the power to 47 administer the program, administer the birth-related neurological injury 48 compensation fund, appoint a service company or companies to administer 49 the payment of claims on behalf of the program, direct the investment 50 and reinvestment of any surplus in the fund over losses and expenses, 51 provided any investment income generated thereby remains in the fund, 52 and reinsure the risks of the fund in whole or in part. 53 § 2034. Plan of operation. 1. On or before September thirtieth, two 54 thousand seven, the directors of the program shall submit to the commis- 55 sioner for review a proposed plan of operations consistent with this 56 article.
S. 4997 7 1 2. The plan of operation shall provide for the efficient adminis- 2 tration of the program and for the prompt processing of claims made 3 against the fund pursuant to an award under this article. The plan shall 4 contain other provisions including: 5 (a) establishment of necessary facilities; 6 (b) management of the fund; 7 (c) appointment of servicing carriers or other servicing arrangements 8 to administer the processing of claims against the fund; and 9 (d) any other matters necessary for the efficient operation of the 10 program. 11 3. The plan of operation shall be subject to approval by the commis- 12 sioner after consultation with representatives of interested individuals 13 and organizations. If the commissioner disapproves all or any part of 14 the proposed plan of operation, the directors shall within thirty days 15 submit for review an appropriate revised plan of operation. If the 16 directors fail to do so, the commissioner shall promulgate a plan of 17 operation. The plan of operation approved or promulgated by the commis- 18 sioner shall become effective and operational upon order of the commis- 19 sioner. 20 4. Amendments to the plan of operation may be made by the directors of 21 the program, subject to the approval of the commissioner. 22 § 2035. Funds to be held in restricted cash account. All funds, shall 23 be held in a separate restricted cash account under the sole control of 24 an independent fund manager to be selected by the directors. The fund, 25 and any income from it, shall be disbursed for the payment of awards as 26 provided in this article and for the payment of the expenses of adminis- 27 tration of the fund. 28 § 2036. Assessments. Funds for this program shall be derived from the 29 hospital excess liability pool, enacted by section eighteen of chapter 30 two hundred sixty-six of the laws of nineteen hundred eighty-six, as 31 amended, in an amount determined by the directors of the fund and certi- 32 fied by the superintendent of insurance to be actuarially sound. 33 § 2037. Actuarial investigation, valuations, gain/loss analysis; 34 notice if assessments prove insufficient. The superintendent of insur- 35 ance shall undertake an actuarial investigation of the requirements of 36 the fund based on the fund's experience in the first year of operation, 37 including without limitation the assets and liabilities of the fund. 38 Pursuant to such investigation, the superintendent of insurance shall 39 establish the rate of contribution from the hospital excess liability 40 pool. 41 Following the initial valuation, the superintendent of insurance shall 42 cause an actuarial valuation to be made of the assets and liabilities of 43 the fund no less frequently than biennially. Pursuant to the results of 44 such valuations, the superintendent of insurance shall prepare a state- 45 ment as to the applicable contribution from the hospital excess liabil- 46 ity pool. 47 § 2. This act shall take effect immediately.
INTRODUCER'S MEMORANDUM IN SUPPORT
submitted in accordance with Senate Rule VI. Sec 1
BILL NUMBER: S4997 SPONSOR: HANNON¦¦¦¦¦¦¦¦¦¦¦¦¦¦