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Government immunity a challenge for birth injury victim

Lawyers in Maryland with experience in medical malpractice events that result in birth injury know that a key to pursuing a claim is clearly showing that a provider, or medical facility, failed to follow the usual standard of care. Sometimes, though, that's not enough. Other factors can get in the way of an award for negligence being fulfilled.

One is if a facility is state run. Government's and public agencies are generally immune from liability. Award amounts are often capped at several hundred thousand dollars, and it takes action by a state legislature to authorize anything more than that. The result is a victim left in limbo.

Such is the case of a young 14-year-old boy and his mother from another state. He was born in 1997 at a publicly run county hospital. He suffered permanent injury during birth that left him crippled with cerebral palsy. In 2007, a jury found the hospital negligent and awarded the family $30 million. The verdict and award have been upheld in two rounds of appeals. But the family is still waiting to collect. The reason - sovereign immunity capped the state's liability.

For two years running a claim for the money has been put before that state's legislature. Dozens like it get filed every year and only a few get approved. As one might expect, the process can take many years and never amount to much. That's hard for the victims.

So for now, this boy and his mom are left hanging. Necessary special tutoring that had been supplied in his public school got cut due to budget constraints. His mother, since divorced, now home schools him and cares for him while also trying to run an in-home business. His wheelchair is old. It can't make it up a ramp. His house is only partially adapted for handicap accessibility.

The hospital, despite losing two appeals, says it will continue to lobby against the family's legislative claim. It says it has immunity and intends to use it.

Such cases, which amount to wars of attrition, serve as an example of why solid legal counsel is so important.

Source: Naples News, "Family seeks Legislature's help in receiving $30 million judgment vs. Lee Memorial," Liz Freeman, Sept. 16, 2011

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