Infant Allowed into Medical Indemnity Fund Where Alleged Malpractice Occurred in Prenatal Period
In re B.L. v. Lawsky: The Appellate Division, First Department Reaffirms that Enrollment In the Medical Indemnity Fund is Open to Infants Who Are Injured In The Couse Of Labor, Delivery Resuscitation, or a Delivery Admission, Even Where The Alleged Malpractice Occurred During Prenatal Treatment.
In In re B.L., Petitioner commenced a medical malpractice action against a New York physician who had provided prenatal care to B.L.’s mother, but who did not participate in his premature birth at a Connecticut hospital. Specifically, it was alleged that B.L. sustained a neurological injury due to oxygen deprivation at the time of his birth because of malpractice by this New York physician during his mother’s prenatal care.
Petitioner and the physician entered into a settlement agreement which provided that B.L. would be enrolled in the Medical Indemnity Fund. See Public Health Law 29-D, Title 4 (“Fund”). However, the New York State Department of Financial Services (“DFS”), which administers the Fund and has exclusive statutory authority to make enrollment decisions, determined that B.L. was not a “qualified plaintiff ” because the alleged malpractice did not take place during the delivery admission, but rather occurred during the prenatal care of B.L.’s mother.
Petitioner subsequently commenced an Article 78 proceeding against DFS, arguing that its determination was affected byan error of law. The Supreme Court granted the petition and directed DFS and Alicare, the Fund’s third-party administrator, to enroll B.L. in the Fund and provide him all benefits to which he is entitled.
The First Department affirmed the Supreme Court, agreeing that DFS’ eligibility determination involved the interpretation of statutes and pure questions of law, and was therefore not entitled to any deference. It also held that enrollment in the Fund is not limited to instances where an infant’s birth related injury was caused by medical malpractice during labor, delivery, resuscitation or a delivery admission. Rather, “the plain language of the pertinent provisions of the Public Health Law requires that the injury take place in the course of labor,delivery or resuscitation” (emphasis in original). Accordingly, DFS “should not have disqualified B.L. on grounds that the alleged malpractice occurred in the course of his mother’s prenatal treatment, since the injuries he claimed to have suffered occurred at the time of birth.”
Notably, the First Department held that B.L’s premature birth at a Connecticut hospital does not affect his eligibility for enrollment in the Fund as a “qualified plaintiff ” since the “malpractice claims here were asserted against and settled by New York entities and a New York doctor, and the Fund’s payments will, as contemplated by the Legislature, alleviate those New York defendants’ malpractice insurance costs.”
Accordingly, it affirmed the Supreme Court’s directive to enroll B.L. in the Fund, and directed DFS and Alicare to take all the necessary ministerial steps to process his Fund application as a “qualified plaintiff.”
B.L. thus reaffirms that enrollment in the Fund is open to infants who are injured in the course of labor, delivery, resuscitation or a delivery admission, even where the alleged malpractice occurred during prenatal treatment. Accordingly, the potential to enroll the infant in the Fund must be a consideration when defending any cases involving allegations related to the mother’s prenatal care.
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