Lawyer for Infants With a Birth-Related Neurological Injury in Virginia

 

Learn How to Receive Benefits or a Settlement Under the Virginia Neurological Injury Compensation Act

 

When something goes wrong during labor and delivery, resulting in a birth injury to your child, you may consider filing a medical malpractice action against the hospital, your OB/GYN, and other healthcare providers who participated in the pregnancy and birth.

 

However, a civil action may not be available to you and your child in Virginia. Instead, you may have to file a claim under the Virginia Birth-Related Neurological Injury Compensation Act.

 

Virginia is one of only two states that gives claimants a no-fault remedy for birth-related neurological injuries. This no-fault program arose from a medical malpractice and insurance crisis in the 1980s that threatened the availability of quality medical providers.

 

This article explains when your child is eligible for benefits under the Virginia Birth-Related Neurological Injury Compensation Act and what your family can expect at different stages.

 

Continue reading to learn more about the legal action you can take to provide for your child’s medical, educational, and developmental needs.

 

Then contact my law firm for a free, confidential consultation. You can reach us at (804) 251-1620 or by completing this form.

 

What is a Birth-Related Neurological Injury?

 

Not all birth injuries fall under the Neurological Injury Compensation Act.

 

As the name suggests, only neurological injuries do.

 

Virginia law’s definition of a birth-related neurological injury has several parts.

 

First, the infant must have an injury to the brain or spinal cord due to oxygen deprivation or mechanical injury. Injuries, disability, or death caused by genetic defects, congenital abnormalities, the mother’s substance abuse, or degenerative neurological conditions do not receive coverage under the program. 

 

Second, this injury must occur during labor, delivery, or the resuscitation needed because of these things.

 

Third, the injury must render the infant permanently motorically disabled.

 

Fourth, the injury must also cause the infant to be (i) developmentally disabled or (ii) if developed enough for a cognitive evaluation, cognitively disabled.

 

Finally, the infant must permanently require assistance in all daily living activities.

 

Is the Virginia Birth-Related Neurological Injury Compensation Program the Sole Remedy for My Infant?

 

Statutory (Virginia Code Section 38.2-5002) and case law says the Neurological Injury Compensation Act is the only remedy for infants with a birth-related neurological injury caused by a physician or hospital participating in the program. Participating physicians and hospitals have absolute immunity to civil malpractice liability for birth-related neurological injuries.

 

Depending on the specific facts of your infant’s case, you may want to defeat the application of the Birth-Related Neurological Injury Compensation Act to the claim. Why? Because a civil action under traditional negligence and tort law may result in more monetary damages, especially when a wrongful death occurs.

 

But you should expect a fight from the healthcare provider on this issue, similar to how employers try to invoke workers compensation as an injured employee’s exclusive remedy after an occupational injury. Keeping birth-related injury claims confined to the Virginia Birth-Related Neurological Injury Program reduces the health provider’s risk of a significant verdict against it at trial.

 

How Do I Know if My Hospital or Provider Participates in the Birth-Related Neurological Injury Program?

 

Licensed hospitals, physicians who practice obstetrics or perform obstetrical services, and nurse-midwives who do the same can apply for and enter into a contract with the Commissioner of Health to participate in the program.

 

You can find out if your provider participates in the program by asking. All providers must tell patients whether they participate in the Birth-Related Neurological Injury Program.

 

You can also see a list of participating hospitals and physicians on the program’s website.

 

What Steps Do I Take to Get Coverage Under the Virginia Birth-Related Neurological Injury Program?

 

You must file a petition to enter the program with the Virginia Workers Compensation Commission.

 

The Virginia Code authorizes the Workers Compensation Commission to hear and resolve all claims filed under the Neurological Injury Compensation Act. If a party disagrees with the Commission’s award or denial of benefits, it may appeal the decision to the Court of Appeals of Virginia.

 

Although you do not need a lawyer to claim benefits through Virginia’s Birth-Injury Program, many families do. And the Commission may award attorney’s fees if the claim succeeds. The program may pay these fees.

 

My firm has handled thousands of workers compensation claims, familiarizing us with the Commission’s procedural rules and judges (called deputy commissioners).

 

How Long Do I Have to Seek Benefits Under the Birth-Injury Program?

 

Ten years from birth is the statute of limitations for initial claims under the Virginia Birth-Related Neurological Injury Program.

 

Who Has the Burden of Proof Under the Birth-Related Neurological Injury Act?

 

A rebuttable presumption of a birth-related neurological injury exists when an infant suffers an injury to the brain or spinal cord due to a mechanical injury that leaves them permanently motorically and developmentally disabled.

 

The Court of Appeals of Virginia has held that when you prove these two facts, the factfinder may presume the other elements exist.

 

Then, the burden of proof shifts to the party opposing the presumption to show that the injuries alleged are not birth-related neurological injuries.

 

Typically you prove (or disprove) causation and disability through medical reports and witness testimony.

 

What Does the Birth-Injury Program Pay For?

 

Once you prove your infant’s eligibility, the Commission may award any of these benefits under the Birth-Related Neurological Injury Act:

 

    • Actual expenses for reasonable and necessary medical care, including hospitalizations, rehabilitation services, doctors’ appointments, therapy visits, palliative treatment, nursing, residential programs, at-home care, medications, supplies, and special medical equipment

 

    • Reimbursement for travel to and from medical and rehabilitation appointments

 

    • Loss of earnings beginning on the infant’s 18th birthday, using an established formula

 

    • Attorney’s fees and litigation costs

 

    • And more

 

Your infant may receive multiple awards under the Birth-Injury program.

 

Can I Receive a Lump Sum Settlement from the Virginia Birth-Related Neurological Injury Program?

 

Maybe. Our law firm has negotiated birth-injury settlements.

 

Settlements are voluntary.

 

And the law caps program settlements if your infant dies soon after birth.

 

Specifically, Virginia Code Section 38.2-5009.1 states that if an otherwise eligible infant dies within 180 days of birth, the Workers Compensation Commission, at its discretion, may award up to $100,000 to the infant’s family, in addition to other benefits paid under the program.

 

Helping Families Obtain Benefits and Settlements for Their Infants Under the Birth-Related Neurological Injury Program

 

Caring for a healthy newborn is challenging enough.

 

Adding additional medical appointments and anxiety over the future of your family and child can feel impossible to handle.

 

Focus on your family while our attorneys evaluate your legal options, including admission into the Virginia Birth-Related Neurological Injury Program.

 

Call now to see if we will accept representation.

 

Corey Pollard
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