The birth of a child is usually a happy time in a parent’s life, and fortunately most deliveries go smoothly. But sometimes complications arise during both pregnancy and delivery, causing injury to the baby. Each year, a small number of babies are born with birth-related neurological injuries. When this happens, you want to make sure that both your legal rights and the baby’s legal rights are protected. Virginia birth injury lawyer Corey Pollard is here to help.
Virginia Birth-Related Neurological Injury Compensation Program
Virginia’s Birth-Related Neurological Injury Compensation Program, often referred to as the Birth-Injury Program, helps parents take care of injured children for life. The Birth-Injury Program covers medically necessary expenses such as medical expenses, hospital expenses, in-home nursing care, and rehabilitation expenses when many insurance carriers will not. In fact, a 2002 study conducted by the Virginia General Assembly Joint Legislative and Review Commission found that the Birth-Injury Program provides benefits worth more than the medical malpractice cap for the typical child.
Not all children with birth injuries are covered under the Birth-Injury Program. The child must have suffered a neurological injury, which is an injury to the brain or spinal cord caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery, or resuscitation. The injury must leave the infant permanently motorically disabled and (i) developmentally disabled or (ii) cognitively disabled. In other words, the birth injury must leave the infant permanently in need of assistance in all activities of daily living.
Benefits under the Birth-Injury Program are not available to infants who are disabled because a genetic or congenital abnormality, degenerative neurological disease, or maternal substance abuse
The Program’s Purpose
Enacted in 1987, the Virginia Birth-Injury Program was a direct response to the difficulty that obstetricians were having obtaining medical malpractice insurance. The Virginia Birth-Related Neurological Injury Compensation Act, codified at Va. Code Section 38.2-5000, is meant to make sure that affordable malpractice insurance is available to those who deliver babies. More affordable insurance has led to more available health care for Virginia residents.
Since its formation, more than 150 claimants have been admitted into the Birth-Injury Program. The Virginia Workers’ Compensation Commission has jurisdiction over claims brought under the program, and about two-thirds of those individuals who have filed petitions to enter have been admitted. It has the sole authority to determine whether a claim satisfies the procedural and substantive requirements of the Virginia Birth-Related Neurological Injury Compensation Act. If the Commission decides that a cause of action satisfies the Virginia Birth-Related Neurological Injury Compensation Act’s requirements, then the Act provides the exclusive remedy for all claimants.
The Birth-Injury Program is funded through participating physician fees, participating hospital fees, liability insurer assessments, and non-participating physician assessments. Its reserve fund has more than $200 million, making the Birth-Injury Program financially sound.
Benefits Available under the Virginia Birth-Injury Program
A child is eligible for the following lifetime benefits once accepted into the Virginia Birth-Related Neurological Injury Compensation Program:
- Medical expenses
- Hospital expenses
- Therapy expenses
- Rehabilitation expenses
- Special equipment or facilities
- Medically necessary travel
- Compensation for lost earnings from age 18 to 65
- Residential and custodial care
Filing a Birth-Related Neurological Injury Claim
You must file a claim to enter the Birth-Injury Program with the Virginia Workers’ Compensation Commission. You do not need a Virginia birth-injury lawyer; however, legal representation is usually recommended and often paid for by the Birth-Injury Program.
The following takes place once you file a petition:
- Your case is reviewed by a panel of expert physicians from an in-state medical school
- The Birth-Injury Program’s administrative staff review the claim
- Your case is heard by a deputy commissioner with the Virginia Workers’ Compensation Commission within 120 days of filing the petition
- The administrative law judge who heard your case makes a decision on eligibility and admission
Either side has the right to appeal the administrative law judge’s decision to the full Commission. The full Commission’s decision may be appealed to the Virginia Court of Appeals.
Common Birth-Injury Program Questions
No. All providers, however, are required to tell patients whether or not they participate in the program. The Birth-Injury Program’s website also has a list of participating physicians and hospitals on its website.
The statute of limitations on filing claims is ten years.
No. Not every state has a birth-injury program, though one does exist in Florida and some other states have various programs to deal with birth-related neurological injuries.
Call Virginia Birth-Injury Lawyer Corey Pollard
We can’t go back in time and change what happened to your child. But we can help you receive the benefits, compensation, and care you and your child deserve. If you are interested in learning more about your legal rights under the Virginia Birth-Related Neurological Injury Compensation Program, contact Virginia birth-injury attorney Corey Pollard today for a free consultation.