What coverage does the Birth-Injury Program provide?
As a participating provider, should a qualifying event occur, no tort action is allowed. The entry of a child into the Program is a matter strictly of whether the child meets the inclusion criteria, not an elective choice on the part of the parents or other parties. The first criteria for inclusion is delivery by a participating physician or at a participating hospital. (See later question for the definition of a birth injury.)
Upon entry into the Program, the child’s medical coverage is provided for life. Additionally, at age 18, the child will begin receiving a limited compensation benefit.
Does participation in the Program replace my malpractice insurance?
No. Participation in the Program only entitles a qualifying birth-injured child you delivered to enter the Program. The Program then pays medically necessary care for the child for life. Additionally, upon reaching the age of 18, a child in the program receives a wage benefit.
What does it cost to participate in the Birth-Injury Program?
The annual fee is set by state law at $5,000 per provider. However, remember a participating physician is entitled to a credit on their malpractice insurance.
Is a qualifying event reported to the National Practitioner Database?
No, it is not reported to the National Practitioner Database. However, by law, when a petition for entry into the Birth-Injury Program is filed with the Virginia Workers’ Compensation Commission, a review is conducted by the Virginia Board of Medicine.
Is there some sort of insurance credit for participating?
Yes. The Birth-Injury Act stipulates that every participating physician is entitled to a credit on his or her malpractice insurance. The amount of the credit varies depending on the insurance company. In some cases it may be less than the participating physician fee, but in other cases it may be equal to or more than the fee. Please talk with your insurance agent or company to assure that you receive the credit.
When does the Birth-Injury coverage become effective?
Thirty (30) days following the Program’s receipt of your signed contract and payment.
If I do not participate for the entire year, is the fee prorated?
Yes. You can obtain the amount for a prorated fee by calling the Program.
How many obstetricians participate in the Birth-Injury Fund?
Depending on the year, the range has been from about 85 percent to 95 percent of all practicing OBs with at least 30 deliveries annually in the Commonwealth.
Who regulates the Virginia Birth-Related Neurological Injury Compensation Program?
The Program is regulated by statute in a variety of ways including:
The Code of Virginia is very specific in how the Program is to operate. Additionally, a Plan of Operation is approved by the State Corporation Commission.
All admissions into the program are through the Virginia Workers’ Compensation Commission. The Program itself does not admit claimants.
The Program is required to file an annual financial report, including information regarding its reserve funds, to the Governor’s office, the Virginia Senate and the Virginia House of Delegates.
The Governor appoints all governing board members for the Program.
At least every-other year, the State Corporation Commission is required to conduct an actuarial study of the Program.
What qualifies a child to enter the program?
First, being delivered by a participating provider or at a participating hospital.
The definition of a qualifying birth injury is:
(From §38.2-5001 of the Code of Virginia)
“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 postdelivery period in a hospital.
