Va. Code » Title 38.2. Insurance » Chapter 50. Virginia Birth-Related Neurological Injury Compensation Act
Virginia Code

Va. Code Ann. § 38.2-5009 (2026)

Commission awards for birth-related neurological injuries; notice of award

✓ current as of May 2026
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A. Upon determining (i) that an infant has sustained a birth-related neurological injury and (ii) that obstetrical services were delivered by a participating physician at the birth or that the birth occurred in a participating hospital, the Commission shall make an award providing compensation for the following items relative to such injury:

1. Actual medically necessary and reasonable expenses of medical and hospital, rehabilitative, therapeutic, nursing, attendant, residential and custodial care and service, medications, supplies, special equipment or facilities, and related travel, such expenses to be paid as they are incurred. Reimbursement may be provided for nursing, attendant, residential, and custodial care that is provided by a relative or legal guardian of a Program beneficiary. However, such expenses shall not include:

a. Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the federal government except to the extent prohibited by federal law;

b. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity;

c. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or federal government except to the extent prohibited by federal law; and

d. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program.

Expenses for medical, hospital, rehabilitative, therapeutic, nursing, attendant, residential, and custodial care services and medications, supplies, special equipment, or facilities under this subdivision shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person.

In order to provide coverage for expenses of medical and hospital services under this subdivision, the Commission, in all cases where a comparative analysis of the costs, including the effects on the infant's family's health insurance coverage, and benefits indicates that such action is more cost-effective than awarding payment of medical and hospital expenses, may (i) require the claimant to purchase private health insurance providing coverage for such expenses, provided that the premium or other costs of such coverage shall be paid by the Fund or (ii) if the Commission determines that it would be unreasonably burdensome to require the claimant to purchase private health insurance, to make an award providing compensation for the cost of private accident and sickness insurance for the infant.

2. Reasonable expenses associated with private health insurance premiums.

3. Reasonable and medically necessary housing assistance for the life of the infant, including home construction and modification costs.

4. Reasonable and medically necessary expenses associated with the purchase of a motor vehicle specifically equipped to accommodate persons with disabilities.

5. A total annual benefit of up to $10,000 for immediate family members who reside with the infant for psychotherapeutic services.

6. Loss of earnings from the age of 18 to be paid in regular installments beginning on the eighteenth birthday of the infant. An infant found to have sustained a birth-related neurological injury shall be conclusively presumed to have been able to earn income from work from the age of 18 through the age of 65, if he had not been injured, in the amount of 50 percent of the average weekly wage in the Commonwealth of workers in the private, nonfarm sector. Payments shall be calculated based on the Commonwealth's reporting period immediately preceding the 18th birthday of the claimant child, and subsequently adjusted based upon the succeeding annual reports of the Commonwealth. Expenses associated with appointment of a legal guardian, creation of trust documents, or other expenses necessary to receive payments under this provision shall be considered expenses incurred by the claimant in connection with the filing of a claim. The provisions of § 65.2-531 shall apply to any benefits awarded under this subdivision.

7. Reasonable expenses associated with the funeral, burial, cremation, and disposition of the remains of such infant, not to exceed $10,000.

8. Reasonable expenses incurred by the claimant in connection with the filing of a claim under this chapter, including reasonable attorney fees of the claimant's attorney, but excluding attorney fees incurred in opposing a claimant's admission pursuant to § 8.01-273.1. Any award for expenses, including attorney fees, incurred by the claimant in connection with the filing of a claim under this chapter shall be subject to the approval and award of the Commission.

A copy of the award shall be sent immediately by registered or certified mail to the parties.

9. Reasonable expenses associated with the services of an education advocate.

B. Where the Commission finds the Program has delayed payment or reimbursement of a covered benefit without reasonable grounds, the Commission shall calculate and add to the amount of the covered benefit an award of interest at the judgment rate from the date payment or reimbursement of the covered benefit was first requested.

C. Regardless of whether the Commission makes either of the determinations described in clauses (i) and (ii) of subsection A, the Commission shall not award compensation in connection with a claim under this chapter, or any claim pursuant to § 8.01-273.1, for any attorney fees or other expenses incurred by any physician, hospital, or nurse midwife that is party to a proceeding under this chapter, or pursuant to § 8.01-273.1, or by a medical malpractice liability insurer of such party. This prohibition shall not affect the requirement that the Program make reimbursement for photocopying costs as set forth in § 8.01-273.1, or the requirement under § 38.2-5002.1 that the Program compensate the Office of the Attorney General for its provision of legal services to the Program.

D. The amendments to this section enacted pursuant to Chapter 535 of the Acts of Assembly of 1990 shall be retroactively effective in all cases arising prior to July 1, 1990, that have been timely filed and are not yet final.

1987, c. 540; 1989, c. 523; 1990, c. 535; 1999, c. 823; 2000, c. 1038; 2003, c. 897; 2004, cc. 896, 931; 2008, cc. 267, 520; 2011, c. 84; 2026, cc. 1010, 1083.

Notes of Decisions
Cited in 25 cases (1 in the last 5 years), 2000–2024 · leading case: Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004).
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Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004). · cites it 6× “See Code § 38.2-5009. 2 The Act also affords potential tort defendants (at least those who contribute voluntary assessments to the fund under Code § 38.”
Spicer v. Virginia Birth-Related Neurological Injury Comp. Prog., 633 S.E.2d 732 (Va. Ct. App. 2006). · cites it 19× “2-5008(A)(4) then directs the commission to determine the amount of any “compensation” awardable under Code § 38.2-5009. And Code § 38.2-5009 specifically mentions attorney fees as an allowable item of “compensation.”
Berner v. Mills, 579 S.E.2d 159 (Va. 2003). · cites it 4× “For example, in its amendment and reenactment of Code § 38.2-5009, the General Assembly stated that “[t]he amendments to this section .”
William T. Young, Jr., etc. v. Virginia Birth-Related Neurological Injury Comp. Prog., 620 S.E.2d 131 (Va. Ct. App. 2005). · cites it 20× “On March 10, 2000, the full commission reversed the deputy commissioner’s decision and awarded Tommy “all the benefits provided by Code § 38.2-5009.” On February 13, 2001, this Court affirmed the full commission’s decision.”
Virginia Birth-Related Neurological Injury Comp. Prog. v. Young, 541 S.E.2d 298 (Va. Ct. App. 2001). · cites it 4× “, (Tommy), pursuant to Code § 38.2-5009, The Program contends the commission erred when it found that the Program failed to rebut the statutory presumption contained in Code § 38.”
John P. Kavanaugh, Jr. v. Virginia Birth-Related Neurological Injury Comp. Prog., 728 S.E.2d 527 (Va. Ct. App. 2012). · cites it 15× “The Act divides the responsibility for implementing its provisions to three separate entities: The Program, governed by its board of directors, the State Corpo *444 ration Commission (SCC), and the Workers’ Compensation Commission.”
Commonwealth v. Bakke, 620 S.E.2d 107 (Va. Ct. App. 2005). · cites it 4× “The Workers' Compensation Commission awarded benefits and expenses under the Virginia Birth-Related Neurological Compensation Act, Code §§ 38.2-5009 through 38.2-5021, to Michele Bakke and Jonathan Bakke, parents and next friends of Jenna Marie Bakke.”
Cooper v. Adler, 604 S.E.2d 747 (Va. Ct. App. 2004). · cites it 5× “2-5008 requires the commission to determine, among other things, if the “injury claimed is a birth-related neurological injury.”
Meador v. Virginia Birth-Related Neurological Injury Comp. Prog., 604 S.E.2d 88 (Va. Ct. App. 2004). · cites it 6× “2d 631, 635 (2004) (citing Code § 38.2-5009). When the Act applies, its award of statutory compensation serves as the “sole remedy for infants who have incurred a birth-related neurological injury caused by a ‘participating physician’ or a ‘participating hospital,’ and bars…”
Coffey v. Virginia Birth-Related Neurological Injury Comp. Prog., 558 S.E.2d 563 (Va. Ct. App. 2002). · cites it 2× “LEGAL ASSISTANCE Code § 38.2-5009 directs the commission to enter an award in favor of an infant determined by it to have sustained a birth-related neurological injury, see Code § 38.”
Jan Paul Fruiterman, M.D. & Assocs., P.C. v. Waziri, 525 S.E.2d 552 (Va. 2000). “[a covered] injury,” § 38.2-5009. I The principal issue raised by the assignments of error is whether a professional corporation is entitled to the rights and benefits of the Compensation Act.”
Jordyn Spicer, etc. v. Virginia Birth-Related Neurological Injury Comp. Prog. (Va. Ct. App. 2006). · cites it 19× “2-5004(A)(1)(h), all “claims” must provide information necessary for the commission to determine the “amount of compensation to be paid to, or on behalf of, the injured infant” on account of the covered injury.”
Show all 25 citing cases →
Va. Code Ann. § 38.2-5009(A): 3 cases
Spicer v. Virginia Birth-Related Neurological Injury Comp. Prog., 633 S.E.2d 732 (Va. Ct. App. 2006). “2-5008(A)(4) then directs the commission to determine the amount of any “compensation” awardable under Code § 38.2-5009. And Code § 38.2-5009 specifically mentions attorney fees as an allowable item of “compensation.”
Jordyn Spicer, etc. v. Virginia Birth-Related Neurological Injury Comp. Prog. (Va. Ct. App. 2006). “2-5004(A)(1)(h), all “claims” must provide information necessary for the commission to determine the “amount of compensation to be paid to, or on behalf of, the injured infant” on account of the covered injury.”
Felicia N. Speller v. Sentara Norfolk Gen. Hosp. (Va. Ct. App. 2024).
Va. Code Ann. § 38.2-5009(A)(1): 4 cases
William T. Young, Jr., etc. v. Virginia Birth-Related Neurological Injury Comp. Prog., 620 S.E.2d 131 (Va. Ct. App. 2005). “On March 10, 2000, the full commission reversed the deputy commissioner’s decision and awarded Tommy “all the benefits provided by Code § 38.2-5009.” On February 13, 2001, this Court affirmed the full commission’s decision.”
John P. Kavanaugh, Jr. v. Virginia Birth-Related Neurological Injury Comp. Prog., 728 S.E.2d 527 (Va. Ct. App. 2012). “The Act divides the responsibility for implementing its provisions to three separate entities: The Program, governed by its board of directors, the State Corpo *444 ration Commission (SCC), and the Workers’ Compensation Commission.”
Claire M. Gesalman v. Virginia Birth-Related Neurological Injury Comp. Prog. (Va. Ct. App. 2005).
Virginia Birth-Related Neurological Injury Comp. Prog. v. Jona Lynn Williamson, etc. (Va. Ct. App. 2005).
Va. Code Ann. § 38.2-5009(A)(3): 4 cases
Spicer v. Virginia Birth-Related Neurological Injury Comp. Prog., 633 S.E.2d 732 (Va. Ct. App. 2006). “2-5008(A)(4) then directs the commission to determine the amount of any “compensation” awardable under Code § 38.2-5009. And Code § 38.2-5009 specifically mentions attorney fees as an allowable item of “compensation.”
Jordyn Spicer, etc. v. Virginia Birth-Related Neurological Injury Comp. Prog. (Va. Ct. App. 2006). “2-5004(A)(1)(h), all “claims” must provide information necessary for the commission to determine the “amount of compensation to be paid to, or on behalf of, the injured infant” on account of the covered injury.”
Virginia Birth-Related Neurological Injury Comp. Prog. v. Monica C. Long, etc. (Va. Ct. App. 2006).
Virginia Birth-Related Neurological Injury Comp. Prog. v. Mai Nguyen & Joseph Pham, etc. (Va. Ct. App. 2005).
Va. Code Ann. § 38.2-5009(A)(ii): 2 cases
Meador v. Virginia Birth-Related Neurological Injury Comp. Prog., 604 S.E.2d 88 (Va. Ct. App. 2004). “2d 631, 635 (2004) (citing Code § 38.2-5009). When the Act applies, its award of statutory compensation serves as the “sole remedy for infants who have incurred a birth-related neurological injury caused by a ‘participating physician’ or a ‘participating hospital,’ and bars…”
Meador v. Birth-related Injury, 604 S.E.2d 88 (Va. Ct. App. 2004).
Va. Code Ann. § 38.2-5009(A)(l): 1 case
John P. Kavanaugh, Jr. v. Virginia Birth-Related Neurological Injury Comp. Prog., 728 S.E.2d 527 (Va. Ct. App. 2012). “The Act divides the responsibility for implementing its provisions to three separate entities: The Program, governed by its board of directors, the State Corpo *444 ration Commission (SCC), and the Workers’ Compensation Commission.”
Va. Code Ann. § 38.2-5009(B): 1 case
Berner v. Mills, 579 S.E.2d 159 (Va. 2003). “For example, in its amendment and reenactment of Code § 38.2-5009, the General Assembly stated that “[t]he amendments to this section .”
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