The New York Medical Indemnity Fund

The Fund Pays a Birth-Injured Child's Future Care in Place of the Defendant

The New York Medical Indemnity Fund pays the future medical, nursing, therapy, and equipment costs of a child whose birth injury was caused by medical malpractice.

When a birth injury case settles or ends in a judgment, those future medical costs come out of the award, and the Fund pays them instead of the hospital or doctor.

Everything else in the case is still paid by the defendant.

A child qualifies only with a court order enrolling them, after a finding or settlement for a brain or spinal cord injury suffered around labor and delivery.

Enrollment can close when the Fund runs short, which happened briefly in 2024.

Call (888) 713-6653 to talk through a birth injury settlement before it is signed. The review is free.

Who Counts as a Qualified Plaintiff Under Public Health Law § 2999-h

The statute sets three conditions, and a child has to meet all of them.^[1]

• A birth-related neurological injury. An injury to the brain or spinal cord of a live-born infant, caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation, or by care given or withheld during the delivery admission, that leaves a permanent and substantial motor impairment or a developmental disability.
• A malpractice finding or a settlement. A jury or court found the injury was caused by medical malpractice, or the claim settled.
• A court order enrolling the child. A New York court has to order the child into the Fund. A settlement or judgment without that order does not qualify.

The timing of the injury matters more than the timing of the mistake. The Appellate Division has read the statute to require that the injury itself happen during labor, delivery, or resuscitation, even where the negligent care came earlier in the pregnancy.^[2]

Cerebral palsy and hypoxic-ischemic encephalopathy are common examples. A nerve injury to the arm, such as a brachial plexus injury, is outside the brain and spinal cord, and whether any particular diagnosis fits the definition is a medical question answered from the delivery records.

What the Medical Indemnity Fund Pays For

The Fund pays "qualifying health care costs," defined by statute and by Health Department regulation, as the child's treating physician, physician assistant, or nurse practitioner prescribes them.^[3]

Doctors, Hospitals, Surgery, and Therapy

Medical, hospital, surgical, and dental care, along with rehabilitation and habilitation therapies. Psychological, social work, nutrition, chiropractic, hospice, and palliative care are on the regulation's list as well.

Nursing, Custodial Care, and Respite

Nursing and custodial care at home, and respite for the family of up to 1,080 hours a year without prior approval. Private duty nursing needs approval in advance.

Equipment and Changes to the Home and Vehicle

Durable medical equipment, assistive technology, home modifications such as ramps and accessible bathrooms, and vehicle modifications. Custom equipment and every modification need prior approval.

Medications, Transportation, and Insurance Copays

Prescription and over-the-counter medications, transportation to appointments, and the copays and deductibles a family's commercial insurance leaves behind. Insurance premiums are not covered.

Providers usually bill the Fund directly, and families can be reimbursed for costs they paid. Claims are due within 90 days of the service and are paid within 45 days of an acceptable claim, and a denial of prior approval can be appealed within 30 days.^[4] A provider who accepts the Fund's payment has to treat it as payment in full.

The Fund is not the first payer. Private health insurance pays first, then the Fund, then Medicare, and Medicaid last, and a child can be enrolled in the Fund and Medicaid at the same time.^[5] Services available through Early Intervention or a school's individualized education program have to be tried there first.

What a Family Gives Up When a Child Enters the Medical Indemnity Fund

Enrollment trades a cash amount for a payment system, and the trade has terms worth reading before anyone signs.

A cash award for future care is spent at the family's discretion and can run out. The Fund pays for as long as costs keep arising, but on its rules and its rates.

Families ask us whether the Fund is a good deal. The answer depends on the child's care plan, and we run both versions, the cash award and the Fund, before anyone signs the order.

How a New York Court Order Enrolls a Child in the Fund

For a settlement, the statute requires the agreement to send future medical expenses to the Fund, and a court will not approve the settlement until it does. For a judgment, any party can ask the court to direct future medical expenses to the Fund once the plaintiff makes a prima facie showing of qualification.

The family's lawyer, or a defendant on notice, then applies with a certified copy of the judgment or approved settlement. The administrator enrolls a child within five business days of a complete application and sends back any order missing the injury finding or the language naming the Fund as payer, which means a return trip to court.^[7]

A child's settlement needs a judge's approval in any event, which our page on the infant compromise order covers. Damages other than future medical expenses, such as pain and suffering and the child's lost earning capacity, are still paid by the defendant in a lump sum, as a Bronx court described the arrangement.^[8] The attorney's fee is figured on the full award, Fund portion included, under the malpractice fee scale.

Getting the order's wording right the first time is what keeps a child's care from waiting on a second court date.

When Enrollment Closes Under the 80 Percent Rule

The Fund stops accepting new children whenever its estimated liabilities reach 80 percent of its assets. Children already enrolled keep their benefits, and the Health Department has to post notice when enrollment stops and when it resumes.^[9]

The margin is thin. The Fund's own actuary counted 1,111 participants at the end of 2024, 1,083 of them living, and reported assets of about $70.7 million against an unfunded liability of about $7.6 billion.^[10] Enrollment was suspended in May 2024 and reopened in June after the state added money. In May 2026 the Health Department said the Fund was open to new enrollments.^[11]

If enrollment is closed when a case resolves, the statute says the judgment or settlement is satisfied as if the Fund did not exist, which puts future medical costs back on the defendant in cash. That makes the Fund's status on the day of settlement part of the negotiation.

CPLR 208's Ten-Year Limit Still Governs the Birth Injury Lawsuit

The Fund only comes into play after a case is won or settled, so the lawsuit has to be filed in time. A child's malpractice claim is extended during childhood but cannot be brought more than ten years after the malpractice.^[12] A delivery at a public hospital adds a 90-day notice of claim on top of that.

Our page on the ten-year limit on New York birth injury claims walks through every clock that can run on one of these cases.