Senate Bill S9215

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9215
 
                             I N  S E N A T E
 
                               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:
 
   Section  1.  Section  2999-g  of  the  public  health law, as added by
 section 52 of part H of chapter 59 of the laws of 2011,  is  amended  to
 read as follows:
   §  2999-g.  Purpose  of  this  title.  Creation  of the New York state
 medical indemnity fund. There is  hereby  created  the  New  York  state
 medical  indemnity  fund  (the  "fund").  The  purpose of the fund is to
 provide a funding source for future health care  costs  associated  with
 [birth  related] neurological injuries, in order to reduce premium costs
 for medical malpractice insurance coverage.
   § 2. Section 2999-h of the public health law, as added by  section  52
 of part H of chapter 59 of the laws of 2011, subdivision 1 as amended by
 chapter  517  of the laws of 2016, subdivision 3 as amended by chapter 4
 of the laws of 2017 and subdivision 4 as amended by section 1 of part  K
 of chapter 57 of the laws of 2019, is amended to read as follows:
   §  2999-h.  Definitions.  As used in this title, unless the context or
 subject matter requires otherwise:
   1. "Birth-related neurological injury" means an injury to the brain or
 spinal cord of a live infant caused by  the  deprivation  of  oxygen  or
 mechanical injury occurring in the course of labor, delivery or resusci-
 tation,  or  by  other  medical services provided or not provided during
 delivery admission, that  rendered  the  infant  with  a  permanent  and
 substantial  motor impairment or with a developmental disability as that
 term is defined by section 1.03 of the mental hygiene law, or both. This
 definition shall apply to live births only.
   2. "Fund" means the New York state medical indemnity fund.
   3. "NEUROLOGICAL INJURY" MEANS 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15834-01-2
 S. 9215                             2
 
 MOTOR  IMPAIRMENT  OR  WITH  A  DISABILITY  THAT: (I) RESULTS IN SIMILAR
 IMPAIRMENT OF GENERAL INTELLECTUAL FUNCTIONING OR ADAPTIVE  BEHAVIOR  TO
 THAT  OF  INTELLECTUALLY DISABLED PERSONS OR (II) REQUIRES TREATMENT AND
 SERVICES  SIMILAR  TO  THOSE  REQUIRED  FOR  SUCH  PERSON; AND (III) HAS
 CONTINUED OR CAN BE EXPECTED TO CONTINUE INDEFINITELY; AND (IV)  CONSTI-
 TUTES A SUBSTANTIAL  HANDICAP  TO  SUCH  PERSON'S  ABILITY  TO  FUNCTION
 NORMALLY IN SOCIETY.
   4.  "Qualifying health care costs" means the future medical, hospital,
 surgical, nursing, dental, rehabilitation, habilitation, respite, custo-
 dial, durable medical equipment, home modifications, assistive technolo-
 gy, vehicle modifications, transportation for purposes  of  health  care
 related appointments, prescription and non-prescription medications, and
 other  health  care costs actually incurred for services rendered to and
 supplies utilized by qualified plaintiffs, which are necessary  to  meet
 their  health  care  needs,  as determined by their treating physicians,
 physician assistants, or nurse practitioners and as otherwise defined by
 the commissioner in regulation.
   [4.] 5. "Qualified plaintiff" means every plaintiff  or  claimant  who
 (i)  has been found by a jury or court to have sustained a birth-related
 neurological injury OR A NEUROLOGICAL INJURY as the  result  of  medical
 malpractice,  or  (ii) has sustained a birth-related neurological injury
 OR A NEUROLOGICAL INJURY as the result of alleged  medical  malpractice,
 and has settled his or her lawsuit or claim therefor; and (iii) has been
 ordered to be enrolled in the fund by a court in New York state.
   §  3.  Subdivision  6  of  section 2999-j of the public health law, as
 amended by section 3 of part K of chapter 57 of the  laws  of  2019,  is
 amended to read as follows:
   6.  (a)  Every  settlement  agreement  for  claims  arising  out  of a
 plaintiff's  or  claimant's  birth  related  neurological  injury  OR  A
 PLAINTIFF'S OR CLAIMANT'S NEUROLOGICAL INJURY subject to this title, and
 that  provides for the payment of future medical expenses for the plain-
 tiff or claimant, shall provide that all  payments  for  future  medical
 expenses  shall  be  paid  in accordance with this title in lieu of that
 portion of the settlement agreement that provides for  payment  of  such
 expenses. The plaintiff's or claimant's future medical expenses shall be
 paid  in  accordance  with  this title. When such a settlement agreement
 does not so provide, the court shall  direct  the  modification  of  the
 agreement to include such term as a condition of court approval.
   (b)  In  any case where the jury or court has made an award for future
 medical expenses arising out of a birth related neurological injury OR A
 NEUROLOGICAL INJURY, any party to such action or  person  authorized  to
 act  on  behalf of such party may make application to the court that the
 judgment reflect that, in  lieu  of  that  portion  of  the  award  that
 provides  for  payment  of such expenses, the future medical expenses of
 the plaintiff shall be paid out of the  fund  in  accordance  with  this
 title.  Upon  a finding by the court that the applicant has made a prima
 facie showing that the plaintiff is a  qualified  plaintiff,  the  court
 shall ensure that the judgment so provides.
   §  4.  This  act shall take effect on the ninetieth day after it shall
 have become a law.