A. There is hereby established the Virginia Birth-Related Neurological Injury Compensation Program.
B. Except as provided in subsection D, the rights and remedies herein granted to an infant on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, his personal representative, parents, dependents or next of kin, at common law or otherwise arising out of or related to a medical malpractice claim with respect to such injury to the infant, including any claims by the infant's personal representative, parents, dependents or next of kin that, by substantive law, are derivative of the medical malpractice claim with respect to the infant's injury, including but not limited to claims of emotional distress proximately related to the infant's injury. This subsection shall not be construed to exclude other rights and remedies available to the infant's mother arising out of or related to a physical injury, separate and distinct from an injury to the infant, that is suffered by the infant's mother during the course of the infant's delivery.
C. Notwithstanding anything to the contrary in this section, a civil action shall not be foreclosed against a physician or a hospital where there is clear and convincing evidence that such physician or hospital intentionally or willfully caused or intended to cause a birth-related neurological injury, provided that such suit is filed prior to and in lieu of payment of an award under this chapter. Such suit shall be filed before the award of the Commission becomes conclusive and binding as provided for in § 38.2-5011.
D. Notwithstanding anything to the contrary in this section, a civil action arising out of or related to a birth-related neurological injury under this chapter, brought by an infant, his personal representative, parents, dependents, or next of kin, shall not be foreclosed against a nonparticipating physician or hospital, provided that (i) no participating physician or hospital shall be made a party to any such action or related action, and (ii) the commencement of any such action, regardless of its outcome, shall constitute an election of remedies, to the exclusion of any claim under this chapter; provided that if claim is made, accepted and benefits are provided by the Fund established under this Virginia Birth-Related Neurological Injury Compensation Program, the Fund shall have the right, and be subrogated, to all of the common law rights, based on negligence or malpractice, which the said infant, his personal representative, parents, dependents or next of kin may have or may have had against the non-participating physician or hospital, as the case may be.
1987, c. 540; 1990, c. 535; 2003, c. 897.
Structure Code of Virginia
Chapter 50 - Virginia Birth-Related Neurological Injury Compensation Act
§ 38.2-5002.2. Confidentiality of certain information; penalty
§ 38.2-5003. Virginia Workers' Compensation Commission authorized to hear and determine claims
§ 38.2-5004.1. Notification of possible beneficiaries
§ 38.2-5005. Tolling of statute of limitations
§ 38.2-5007. Interrogatories and depositions
§ 38.2-5008.1. Right to confront and cross-examine witnesses
§ 38.2-5009. Commission awards for birth-related neurological injuries; notice of award
§ 38.2-5009.1. Infants dying shortly after birth
§ 38.2-5010. Rehearing on Commission determination or award
§ 38.2-5011. Conclusiveness of determination or award; appeal
§ 38.2-5012. Enforcement, etc., of orders and awards
§ 38.2-5013. Limitation on claims
§ 38.2-5015. Birth-Related Neurological Injury Compensation Fund; assets of the Fund; audit
§ 38.2-5016. Board of directors; appointment; vacancies; term; list of Program claimants
§ 38.2-5016.1. Investment strategy advice; expected returns
§ 38.2-5017. Plan of operation
§ 38.2-5018. Assessments to be held in restricted cash account
§ 38.2-5020.1. Credits against malpractice insurance premiums