What qualifies a child to enter the Birth-Injury Program?
A child must be delivered either by a participating provider (physician/midwife) or at a participating hospital. The child’s injuries also must meet the definition of a qualifying birth-injury as outlined in state law.
What is the legal definition used to define a qualifying birth-injury?
Section 38.2-5001, Code of Virginia states:
“Birth-related neurological injury” means injury to the brain or spinal cord of an infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital which renders the infant permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled. In order to constitute a “birth-related neurological injury” within the meaning of this chapter, such disability shall cause the infant to be permanently in need of assistance in all activities of daily living. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality, degenerative neurological disease, or maternal substance abuse. The definition provided here shall apply retroactively to any child born on and after January 1, 1988, who suffers from 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 in the immediate post-delivery period in a hospital.”
How do I know if my obstetrician or hospital participates in the Program?
All providers are required by law to inform obstetrical patients whether or not they participate in the Birth-Injury Program. You also can see a list of current year participating physicians and hospitals on this website. Information on participants in prior years is available from the Program.
If my physician or hospital participates in the Birth-Injury Program and a qualifying birth-injury occurs, what happens?
The chances of a birth-injury are very small, however, if it does occur you may petition for your child to enter the Birth-Injury Program. 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.
Who decides if a child qualifies for the Birth-Injury Program?
All petitions for entry into the Birth-Injury Program must be filed with the Virginia Workers’ Compensation Commission (WCC). The WCC has sole authority to enter a claimant into the Program.
Is a lawyer needed to file a petition to enter the Birth-Injury Program?
A lawyer is not required; however, most claimants do utilize legal counsel. If a lawyer is used the Workers’ Compensation Commission may award reasonable legal fees if the child is admitted.
Does the Program cover children with birth defects?
The law does not apply to disability or death caused by genetic or congenital abnormality, degenerative neurological disease, or substance abuse by the infant’s mother.
How long after a birth may a petition be filed?
There is a ten-year statute of limitations on filing claims.
How does the Birth-Injury Program benefit all Virginians?
The Birth-Injury Program in conjunction with other state efforts helps hold down the cost of medical malpractice insurance for all physicians in Virginia, and thus helps keep obstetrical and other medical services available to all Virginians.
If my child does not qualify for the Birth-Injury Program, is there anywhere else I can get help?
Please see our resource page. We have listed many sources of information and assistance.
How is the Birth-Injury Program funded?
The Birth-Injury Program does not receive state funds. Funding is provided through four sources: Participating physician and hospital fees; assessments of liability insurance carriers operating in Virginia; and assessments of non-participating physicians practicing in Virginia.
I am interested in serving on the Board of Directors of the Birth-Injury Program, how do I volunteer?
All nine board members are appointed by the Governor of Virginia. Four of the positions are representatives of specific industries. The remaining are citizen representatives, which must meet certain requirements. For information on appointments contact the Secretary of the Commonwealth’s office.
Does every state have a Birth-Injury Program?
No. A similar program has been established in Florida, and some other states utilize other methods and programs to deal with similar issues. The Virginia Birth-Injury Program does regularly receive inquiries from other states and even other countries concerning the establishment of a program.
