Defines "neurological injury" as an injury to the brain or spinal cord of a person occurring in the course of the provision of medical services, that rendered the person with a permanent and substantial motor impairment or with a disability that: results in similar impairment of general intellectual functioning or adaptive behavior to that of intellectually disabled persons; requires treatment and services similar to those required for such person; has continued or can be expected to continue indefinitely; and constitutes a substantial handicap to such person's ability to function normally in society; differentiates a birth-related neurological injury and a neurological injury.
STATE OF NEW YORK
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1053
2023-2024 Regular Sessions
IN SENATE
January 9, 2023
___________
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 amended by chapter
11 807 of the laws of 2022, is amended to read as follows:
12 § 2999-h. Definitions. As used in this title, unless the context or
13 subject matter requires otherwise:
14 1. "Activities of daily living" means basic personal everyday activ-
15 ities, including, but not limited to, tasks such as eating, toileting,
16 grooming, dressing, bathing, and transferring.
17 2. "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.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02699-01-3
S. 1053 2
1 2-a. "Neurological injury" means an injury to the brain or spinal cord
2 of a person occurring in the course of the provision of medical
3 services, that rendered the person with a permanent and substantial
4 motor impairment or with a disability that: (i) results in similar
5 impairment of general intellectual functioning or adaptive behavior to
6 that of intellectually disabled persons or (ii) requires treatment and
7 services similar to those required for such person; and (iii) has
8 continued or can be expected to continue indefinitely; and (iv) consti-
9 tutes a substantial handicap to such person's ability to function
10 normally in society.
11 3. "Fund" means the New York state medical indemnity fund.
12 4. "Instrumental activities of daily living" means activities related
13 to living independently in the community, including but not limited to,
14 meal planning and preparation, managing finances, shopping for food,
15 clothing and other essential items, performing essential household
16 chores, communicating by phone or other media, and traveling around and
17 participating in the community.
18 5. "Qualifying health care costs" means the future costs for medical,
19 hospital, surgical, nursing, dental, rehabilitation services, habili-
20 tation services, therapeutic services, and custodial care; behavioral
21 and mental health care; respite care; durable medical equipment; envi-
22 ronmental home modifications (emods), assistive technology, and vehicle
23 modifications; prescription and over the counter medications; transpor-
24 tation for purposes of health care related appointments and other health
25 care costs actually incurred for services rendered to and supplies
26 utilized by qualified plaintiffs, which are necessary to meet their
27 health care needs and as otherwise defined by the commissioner in regu-
28 lation; copayments and deductibles for services, items, equipment or
29 medication paid for by commercial insurance; and any other health care
30 costs actually incurred for services rendered to and supplies utilized
31 by a qualified plaintiff that their health care provider has stated in
32 writing is necessary to meet the qualified plaintiff's health care
33 needs. The statement of necessity may be based on the assessment of a
34 health care provider licensed or certified under title eight of the
35 education law and as otherwise defined in regulation. Health care
36 providers as used in this section shall mean health care providers
37 licensed or certified under title eight of the education law and as
38 otherwise may be defined in regulation. Qualifying health care costs
39 shall be covered regardless of the setting where these services are
40 provided.
41 6. "Qualified plaintiff" means every plaintiff or claimant who (i) has
42 been found by a jury or court to have sustained a birth-related neuro-
43 logical injury as the result of medical malpractice, or (ii) has
44 sustained a birth-related neurological injury or a neurological injury
45 as the result of alleged medical malpractice, and has settled his or her
46 lawsuit or claim therefor; and (iii) has been ordered to be enrolled in
47 the fund by a court in New York state.
48 § 3. Subdivision 6 of section 2999-j of the public health law, as
49 amended by section 3 of part K of chapter 57 of the laws of 2019, is
50 amended to read as follows:
51 6. (a) Every settlement agreement for claims arising out of a
52 plaintiff's or claimant's birth related neurological injury or a
53 plaintiff's or claimant's neurological injury subject to this title, and
54 that provides for the payment of future medical expenses for the plain-
55 tiff or claimant, shall provide that all payments for future medical
56 expenses shall be paid in accordance with this title in lieu of that
S. 1053 3
1 portion of the settlement agreement that provides for payment of such
2 expenses. The plaintiff's or claimant's future medical expenses shall be
3 paid in accordance with this title. When such a settlement agreement
4 does not so provide, the court shall direct the modification of the
5 agreement to include such term as a condition of court approval.
6 (b) In any case where the jury or court has made an award for future
7 medical expenses arising out of a birth related neurological injury or a
8 neurological injury, any party to such action or person authorized to
9 act on behalf of such party may make application to the court that the
10 judgment reflect that, in lieu of that portion of the award that
11 provides for payment of such expenses, the future medical expenses of
12 the plaintiff shall be paid out of the fund in accordance with this
13 title. Upon a finding by the court that the applicant has made a prima
14 facie showing that the plaintiff is a qualified plaintiff, the court
15 shall ensure that the judgment so provides.
16 § 4. This act shall take effect on the ninetieth day after it shall
17 have become a law; provided, however, that the provisions of section two
18 of this act shall take effect on the same date and in the same manner as
19 chapter 807 of the laws of 2022, takes effect.
