Admission into the Program is determined solely by the Virginia Workers’ Compensation Commission based on criteria outlined in state law. The law provides that awards under the Program are exclusive. That means that if an injury is covered by the Program, the child and his or her family are not entitled to compensation from a malpractice lawsuit. Instead, the child is eligible for a lifetime of benefits from the Virginia Birth-Related Neurological Injury Compensation Program.
Key Points of the Virginia Law
- Child delivered by a participating doctor or hospital
- Child who suffered a birth-related neurological injury, as defined by Virginia law
- Injury must have resulted from oxygen deprivation or mechanical injury during labor, delivery, immediate post delivery
- Child must be permanently motorically disabled and developmentally disabled or cognitively disabled
- Child must need assistance with all daily living activities
Benefits
Covered Services/Expenses for an Awarded Claim
- Medical
- Hospital
- Rehabilitation/Therapy
- Residential and custodial care
- Compensation for lost earnings, ages 18 to 65
- Special equipment or facilities
- Reasonable claim filing costs (including attorney’s fees)
- Medically necessary travel
Expenses not covered
- Expenses covered by prepaid health plans or HMOs
- Expenses covered by private insurance
Claims
A petition to enter the Program may only be filed with the Virginia Workers’ Compensation Commission. While legal representation is generally recommended and in many cases will be paid for by the Birth-Injury Program, it is not required. Filing a petition begins a process that includes:
- A review of the case by a panel of expert physicians from one of three in-state medical schools
- A review by the administrative side of the Birth-Injury Program
- An initial hearing by a WCC administrative judge
- Workers’ Compensation Commission issues a decision on eligibility and admission
Once the administrative judge makes a decision, either party may file an appeal. The first appeal is to the full Commission. Next the decision may be appealed to the Virginia Court of Appeals, and finally it may be submitted to the Virginia Supreme Court.
