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 or 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 or his personal representative, parents, dependents, or next of kin against a participating hospital or physician shall be referred to the Virginia Workers' Compensation Commission for the purposes of determining whether the cause of action satisfies the requirements of this chapter, pursuant to § 8.01-273.1. No civil action arising out of or related to a birth-related neurological injury brought by an infant or his personal representative, parents, dependents, or next of kin shall be foreclosed against a nonparticipating physician or hospital, provided that if a claim is made and accepted and benefits are provided by the Fund established under this Program, the Fund shall have the right, and be subrogated, to all of the common law rights, based on negligence or malpractice, that the said infant or 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; 2026, cc. 1010, 1083.
Notes of Decisions
Cited in
32
cases (
1 in the last 5 years), 1991–2024 · leading case:
Cooper v. Adler, 604 S.E.2d 747 (Va. Ct. App. 2004).
Cooper v. Adler, 604 S.E.2d 747 (Va. Ct. App. 2004).
· cites it 26× “The commission determined that Code § 38.2-5002 gave the commission authority to adjudicate the claim of the infant and that the remedy afforded the infant foreclosed Cooper’s common law claim.”
Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004).
· cites it 4× “See Code § 38.2-5002(B). “The Act generally provides the sole remedy for infants who have incurred a birth-related neurological injury caused by a ‘participating physician’ or a ‘participating hospital,’ and bars infants who have sustained injuries of this nature from…”
Women's Healthcare Assocs., Inc. v. Valerie Mucci, 768 S.E.2d 720 (Va. Ct. App. 2015).
· cites it 26× “See Code § 38.2-5002. The Act also affords potential tort defendants (at least those who choose to participate in the Birth-Related Neurological Injury Compensation Fund under Code § 38.”
Berner v. Mills, 579 S.E.2d 159 (Va. 2003).
· cites it 2× “The Act generally provides the sole remedy for infants who have incurred a birth-related neurological injury caused by a “participating physician” or a “participating hospital,” and bars infants who have sustained injuries of this nature from maintaining a common law tort action…”
Jan Paul Fruiterman v. Waziri, 525 S.E.2d 552 (Va. 2000).
· cites it 5× “” § 38.2-5002(A). The act provided that, subject to two exceptions 2 , “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,…”
Kidder v. Virginia Birth-Related Neurological Injury Comp. Prog., 560 S.E.2d 907 (Va. Ct. App. 2002).
· cites it 2× “These same principles apply here because the program is (1) created by state statute, Code § 38.2-5002(A); (2) funded by a public trust comprising voluntary and involuntary assessments and reviewed for solvency by the State Corporation Commission, Code §§ 38.”
King v. Virginia Birth-Related Neurological Injury Comp. Prog., 410 S.E.2d 656 (Va. 1991).
· cites it 2× “Code § 38.2-5002(B) and (C). The Act defines “birth-related neurological injury” as an 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 in the immediate…”
William T. Young, Jr. v. Virginia Birth-Related Neurological Injury Comp. Prog., 620 S.E.2d 131 (Va. Ct. App. 2005).
· cites it 4× “2d 747, 750 (2004) (citing Code § 38.2-5002). Thus, “[b]y delivering an infant in a participating hospital and/or through a participating physician, the baby’s family automatically waives the right to bring a medical malpractice lawsuit against the participating physician or…”
Schaffer v. Gildon, 61 Va. Cir. 118 (Va. Cir. Ct. 2003).
· cites it 6× “” Va. Code Ann. § 38.2-5002 (B) (emphasis added).”
Meador v. Virginia Birth-Related Neurological Injury Comp. Prog., 604 S.E.2d 88 (Va. Ct. App. 2004).
· cites it 2× “The defendants responded to the suit by claiming tort immunity under Code § 38.2-5002(B) of the Virginia Birth-Related Neurological Injury Compensation Act and by moving to refer the claim to the Workers’ Compensation Commission for a determination of the Act’s applicability.”
Gibson v. Riverside Hosp., Inc., 458 S.E.2d 460 (Va. 1995).
· cites it 2× “As provided by the pertinent provisions of the Act, an infant who incurs a birth-related neurological injury, caused by the negligence of a participating health care provider, cannot maintain a common law tort action against the participating health care provider other than as…”
Va. Code Ann. § 38.2-5002(0): 1 case
Va. Code Ann. § 38.2-5002(33): 1 case
Women's Healthcare Assocs., Inc. v. Valerie Mucci, 768 S.E.2d 720 (Va. Ct. App. 2015).
“See Code § 38.2-5002. The Act also affords potential tort defendants (at least those who choose to participate in the Birth-Related Neurological Injury Compensation Fund under Code § 38.”
Va. Code Ann. § 38.2-5002(A): 3 cases
Kidder v. Virginia Birth-Related Neurological Injury Comp. Prog., 560 S.E.2d 907 (Va. Ct. App. 2002).
“These same principles apply here because the program is (1) created by state statute, Code § 38.2-5002(A); (2) funded by a public trust comprising voluntary and involuntary assessments and reviewed for solvency by the State Corporation Commission, Code §§ 38.”
Jan Paul Fruiterman v. Waziri, 525 S.E.2d 552 (Va. 2000).
“” § 38.2-5002(A). The act provided that, subject to two exceptions 2 , “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,…”
Va. Code Ann. § 38.2-5002(B): 24 cases
Cooper v. Adler, 604 S.E.2d 747 (Va. Ct. App. 2004).
“The commission determined that Code § 38.2-5002 gave the commission authority to adjudicate the claim of the infant and that the remedy afforded the infant foreclosed Cooper’s common law claim.”
Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004).
“See Code § 38.2-5002(B). “The Act generally provides the sole remedy for infants who have incurred a birth-related neurological injury caused by a ‘participating physician’ or a ‘participating hospital,’ and bars infants who have sustained injuries of this nature from…”
Women's Healthcare Assocs., Inc. v. Valerie Mucci, 768 S.E.2d 720 (Va. Ct. App. 2015).
“See Code § 38.2-5002. The Act also affords potential tort defendants (at least those who choose to participate in the Birth-Related Neurological Injury Compensation Fund under Code § 38.”
Berner v. Mills, 579 S.E.2d 159 (Va. 2003).
“The Act generally provides the sole remedy for infants who have incurred a birth-related neurological injury caused by a “participating physician” or a “participating hospital,” and bars infants who have sustained injuries of this nature from maintaining a common law tort action…”
Va. Code Ann. § 38.2-5002(C): 5 cases
Jan Paul Fruiterman v. Waziri, 525 S.E.2d 552 (Va. 2000).
“” § 38.2-5002(A). The act provided that, subject to two exceptions 2 , “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,…”
Va. Code Ann. § 38.2-5002(D): 2 cases
Jan Paul Fruiterman v. Waziri, 525 S.E.2d 552 (Va. 2000).
“” § 38.2-5002(A). The act provided that, subject to two exceptions 2 , “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,…”
Va. Code Ann. § 38.2-5002(D)(ii): 1 case
Va. Code Ann. § 38.2-5002(b): 1 case
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