Cerebral palsy care project

Tuesday, January 01, 2013 12:16 PM

Initiative aims to provide immediate assistance to children born with cerebral palsy

Families who have children born with Cerebral Palsy (CP) often pursue lawsuits to identify financial resources to help them address the unimaginable challenges they face in caring for their child. Unfortunately, the tort system is fraught with uncertainty, takes years of drawn-out legal proceedings, carries high emotional costs, and requires huge investments of time and energy. After all of this, the family still receives no guarantee that they will be given the financial support they need.

The challenge, as anyone familiar with the medical liability system knows, is that families typically only can become eligible for significant compensation if they claim that medical providers are at fault for their child’s condition. But research has demonstrated that, in the vast majority of cases, CP is not the result of provider negligence.

Does the absence of negligence eliminate the families’ needs? Of course not. And even when families go to court and prove negligence, they receive only a fraction of the amount spent on the case, with opposing counsels’ legal fees consuming much of the total.

All too often, the physician-patient relationship and the physician end up as collateral damage. Physicians named in lawsuits endure the glare of negative publicity and the stress of litigation even when they are blameless.

An effective medical liability system should meet three goals:

1. Fairly compensate injured patients and their families.
2. Improve safety by ensuring that physicians and other health care providers learn from errors.
3. Hold physicians and other providers accountable for the quality of the care they offer.

The current medical malpractice system falls far short in all three areas:

1. Compensation is unpredictable and inequitable. Many patients cannot afford to access the judicial system. Those who can access it may get nothing if they cannot legally prove negligence – regardless of their needs. Even if they win a settlement or verdict, it may take years and they typically get less than half of the money spent on their cases.
2. Errors don’t necessarily lead to improvements. Just the threat of lawsuits creates a bunker mentality that makes physicians and other health care providers less likely to report and address emerging safety issues before they result in more harm.
3. Litigation does a poor job of identifying medical errors. Only about 2-3 percent of errors result in claims yet research shows there is no negligence in as many as five out of six medical malpractice claims.

“It’s about the child. It’s about that family. We have a wonderful opportunity in this state to be on the cutting edge in solving this problem,” says Judith Ham, president and CEO of United Cerebral Palsy of Colorado.

Piloting a system that doesn’t make support for patients contingent on assigning blame could give immediate relief to the families of neurologically impaired children while pointing the way to better health care for all Coloradans.

While this initiative is new, encouraging precedents are offered by the National Vaccine Injury Compensation Program, among other time-tested programs that don’t tie compensation to a finding of fault.

The Cerebral Palsy Care Project has drafted a legislative proposal that, if enacted, would create a five-year project to:

• Provide care coordination and resources to certain families of children with birth-related CP.
• Demonstrate that such a program can be more effective for these families and more financially efficient than the current lawsuit-based system.

Children and families meeting the proposal’s guidelines would receive benefits without having to prove that a provider was at fault or even that their condition is connected to the medical care they received before or during birth. Participating families would not be able to pursue other legal options for additional benefits.

The demonstration project, which would exclude premature babies or those with CP that was the result of other childhood causes, could be renewed after five years. Even if it were not renewed, participating families in the initial five-year stage would be covered for the life of the child.

It would be administered by a not-for-profit organization accountable to the Colorado insurance commissioner and governed by a board, which will include members appointed by the governor.

Funding for the program would come from insurers like COPIC that currently bear the financial burden of birth-related CP lawsuits. Under the program, all monies that have traditionally gone toward defense expenses and compensation would then go into a fund to benefit eligible families. COPIC supports the initiative, which would need to be enacted by the Colorado Legislature.

Leaders of the initiative are meeting now with families, groups that advocate for people with disabilities, physicians, nurses, health provider organizations, hospitals and health plans, among others.