S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1053
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              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:

   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  amended  by  chapter
 807 of the laws of 2022, is amended to read as follows:
   §  2999-h.  Definitions.  As used in this title, unless the context or
 subject matter requires otherwise:
   1. "Activities of daily living" means basic personal  everyday  activ-
 ities,  including,  but not limited to, tasks such as eating, toileting,
 grooming, dressing, bathing, and transferring.
   2. "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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02699-01-3
 S. 1053                             2
              

 
   2-A. "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
 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.
   3. "Fund" means the New York state medical indemnity fund.
   4. "Instrumental activities of daily living" means activities  related
 to  living independently in the community, including but not limited to,
 meal planning and preparation, managing  finances,  shopping  for  food,
 clothing  and  other  essential  items,  performing  essential household
 chores, communicating by phone or other media, and traveling around  and
 participating in the community.
   5.  "Qualifying health care costs" means the future costs for medical,
 hospital, surgical, nursing, dental,  rehabilitation  services,  habili-
 tation  services,  therapeutic  services, and custodial care; behavioral
 and mental health care; respite care; durable medical  equipment;  envi-
 ronmental  home modifications (emods), assistive technology, and vehicle
 modifications; prescription and over the counter medications;  transpor-
 tation for purposes of health care related appointments 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 and as otherwise defined by the commissioner in regu-
 lation; copayments and deductibles for  services,  items,  equipment  or
 medication  paid  for by commercial insurance; and any other health care
 costs actually incurred for services rendered to and  supplies  utilized
 by  a  qualified plaintiff that their health care provider has stated in
 writing is necessary to  meet  the  qualified  plaintiff's  health  care
 needs.  The  statement  of necessity may be based on the assessment of a
 health care provider licensed or certified  under  title  eight  of  the
 education  law  and  as  otherwise  defined in regulation.   Health care
 providers as used in this  section  shall  mean  health  care  providers
 licensed  or  certified  under  title  eight of the education law and as
 otherwise may be defined in regulation.  Qualifying  health  care  costs
 shall  be  covered  regardless  of  the setting where these services are
 provided.
   6. "Qualified plaintiff" means every plaintiff or claimant who (i) has
 been found by a jury or court to have sustained a  birth-related  neuro-
 logical  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
 S. 1053                             3

 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; provided, however, that the provisions of section two
 of this act shall take effect on the same date and in the same manner as
 chapter 807 of the laws of 2022, takes effect.