Birth-injury program loses as high court says it won’t hear appeal
A state program to help children injured at birth has lost a 2½-year legal battle during which it sought to deny care to a Paraplegic Franklin County boy.
The program had argued that Mason Allen McGrady’s ability to combat-crawl across the floor with his one good limb illustrated that he did not need assistance in all aspects of daily living, a criterion to qualify for lifetime help.
In a decision made public yesterday, the state Supreme Court declined to hear an appeal in the case filed by the state attorney general’s office, which represents the state’s birth-injury program and which had unsuccessfully appealed four successive decisions in Mason’s favor.
The McGrady case marks the last in a series of challenges by program officials in more than a dozen cases. The challenges began in earnest six years ago as the financial condition of the program began to deteriorate.
The challenges failed in all but one case. Legal fees alone — paid to lawyers representing families and to a private law firm used by the program between 2001 and 2004 — have reached almost $1 million. However, most families of children seeking entry into the program do not have to go as far as a formal hearing.
Mason, now 4, was born with a spinal-cord injury that left him paralyzed below the waist, incontinent and developmentally delayed.
“I think this should be the end of it. Maybe Mason can finally get the help he needs,” said T. Daniel Frith III, the Roanoke lawyer for the McGrady family.
Frith lashed out at the attorney general’s office, citing the McGrady appeals and a dozen others filed in recent years that have challenged benefits sought by families, entry into the program, and legal fees.
“This program is being abused by the attorney general’s office which has mounted appeal after appeal of these cases without success,” he said.
“Someone in the legislature needs to come forward and take enough interest in this program to get it back to what it was supposed to be,” Frith said.
Mason McGrady’s mother, Tara, said yesterday that she is thrilled with the decision. “But the first thing I want to do is make sure other families never have to go through what we did. Something’s wrong with this process.”
George Deebo, executive director of the program, declined to comment yesterday but has said in the past that the program is mandated by law to protect the financial interests of children under its care by scrutinizing each case.
The program has gone from having a positive balance of about $50 million in 1998 to having a shortfall of $125 million. Even so, assets are sufficient to sustain program operations for at least the next 15 years, according to projections.
The cash shortage stems from financial benchmarks that require the program to have sufficient funds in hand to care for the children now eligible for the rest of their lives. About 95 living children receive care.
The 18-year-old birth-injury program bars malpractice suits against participating hospitals and obstetricians in cases of severe spinal-cord injuries or loss of oxygen at birth resulting in brain damage. Instead, families are promised lifetime medical assistance for the injured child.
By declining to hear the appeal, the Supreme Court let stand a decision that the necessary degree of injury to qualify for the program can be presumed if a child has lifelong cognitive or developmental delays and is severely injured physically.
The program has never sought to change wording in the law that would more specifically define needing assistance in “all aspects of daily living” or the meaning of developmental injury; the literal meaning of both phrases was in dispute in the McGrady case.
The Supreme Court decision means Mason will receive lifetime medical benefits beyond what is already paid for through existing government programs and insurance. His parents, who live in Callaway, have said they cannot afford several therapies that could help their son. Mason can maneuver well in a wheelchair and is not significantly impaired cognitively.
But the decision comes as some program families are raising objections to program operations and as the program seeks to develop funding plans that can reduce its cash shortage over the next several years. The program collects about $20 million annually in fees paid by doctors, hospitals and insurers; it does not use state funds.
While the program is obligated by law to pay reasonable, medically necessary expenses, disputes are arising over the program’s refusal to pay out-of-network medical and therapy costs; it is seeking assessments from private doctors about the medical necessity of some therapies prescribed by treating physicians or therapists; and it has placed limits on expenses for therapies that treating physicians say are necessary.
BY BILL MCKELWAY
TIMES-DISPATCH STAFF WRITER