2.10 Virginia Birth-related Neurological Injury Compensation Act

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

2.10 VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ACT

2.1001 Introduction. In 1987, the Virginia General Assembly enacted the Virginia Birth-Related Neurological Injury Compensation Act (the "Birth Injury Fund Act"). ¹⁷⁸ The purpose of the Birth Injury Fund Act is to limit the liability exposure of obstetricians ¹⁷⁹ and hospitals ¹⁸⁰ to medical malpractice claims arising out of birth-related disabilities caused by oxygen deprivation or mechanical injury. The Act expressly excludes cases arising from genetic abnormalities, degenerative neurological diseases, or maternal substance abuse. ¹⁸¹

2.1002 Birth-Related Neurological Injury Defined. For the Birth Injury Fund Act to apply, (i) the injury must be a brain or spinal cord injury; (ii) the injury must have occurred in the course of labor, delivery, or resuscitation due to oxygen deprivation or mechanical injury; (iii) the injury must have rendered the child permanently motorically, cognitively, or developmentally disabled; and (iv) the child must be in need of perpetual assistance. ¹⁸² If elements (i) and (iii) are met, the burden shifts to the party asserting that the Act does not apply to disprove elements (ii) and (iv). In Central Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, ¹⁸³ a child was pronounced dead in the delivery room due to umbilical cord strangulation, was found to have a heart rate a few minutes later, and was again pronounced dead two hours later. Deferring to the Workers' Compensation Commission's finding that the brevity of the child's life precluded a determination of whether the child was motorically, cognitively, or develop-mentally permanently disabled, the Court of Appeals affirmed.

2.1003 Act Is Exclusive Remedy. The Birth Injury Fund Act is the exclusive remedy for a child who meets certain statutory definitions and

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makes a claim or files a lawsuit against a particular participating physician or hospital. ¹⁸⁴ Like the medical malpractice cap, the Act has been held to be constitutional by the Virginia Supreme Court. ¹⁸⁵

The Workers' Compensation Commission hears individual claims under the Birth Injury Fund Act. ¹⁸⁶ Claimants may retain counsel for purposes of the petition, and the program is represented by the Attorney General's office. ¹⁸⁷ Each claim is reviewed by a panel of medical school faculty physicians. ¹⁸⁸ The panel hears evidence and submits a report to the Workers' Compensation Commission concluding that the infant's injuries were or were not birth-related. ¹⁸⁹ The parties are bound by the Commission's finding. ¹⁹⁰

2.1004 "Participating" Providers. While the Birth Injury Fund Act covers both participating physicians and participating hospitals, it was determined that, as the statute originally read, it did not cover private or professional corporations. Accordingly, a participating physician (an individual covered by the Act) did not shield the corporation (an uncovered employer)...