{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/38.2-5002.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/38.2-5002.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/38.2-5002.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/38.2-5002.html"}],"law_id":77129,"edition_id":1,"section_id":77129,"structure_id":13218,"section_number":"38.2-5002","catch_line":"Virginia Birth-Related Neurological Injury Compensation Program; exclusive remedy; exception","history":"1987, c. 540; 1990, c. 535; 2003, c. 897.","full_text":"A\n\nThere is hereby established the Virginia Birth-Related Neurological Injury Compensation Program.B\n\nExcept 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\n\nNotwithstanding 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\n\nNotwithstanding 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.","order_by":null,"text":{"0":{"id":276703,"text":"There is hereby established the Virginia Birth-Related Neurological Injury Compensation Program.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":276704,"text":"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.","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"C"},"2":{"id":276705,"text":"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.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B","next_prefix":"D"},"3":{"id":276706,"text":"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.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C"}},"ancestry":[{"id":13218,"edition_id":1,"name":"Virginia Birth-Related Neurological Injury Compensation Act","identifier":"50","label":"chapter","depth":2,"order_by":1,"parent_id":12698,"metadata":{},"date_created":"2026-06-26 03:44:28","date_modified":"2026-06-26 03:44:28","permalink":{"id":217589,"object_type":"structure","relational_id":13218,"identifier":"50","token":"38.2\/50","url":"\/38.2\/50\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12698,"edition_id":1,"name":"Insurance","identifier":"38.2","label":"title","depth":1,"order_by":1,"parent_id":null,"metadata":{},"date_created":"2026-06-26 03:43:49","date_modified":"2026-06-26 03:43:49","permalink":{"id":210661,"object_type":"structure","relational_id":12698,"identifier":"38.2","token":"38.2","url":"\/38.2\/","edition_id":1,"permalink":0,"preferred":1}}],"structure_contents":[{"id":74067,"structure_id":13218,"section_number":"38.2-5000","catch_line":"Short title","url":"\/38.2-5000\/","token":"38.2\/50\/38.2-5000","metadata":false},{"id":83577,"structure_id":13218,"section_number":"38.2-5001","catch_line":"Definitions","url":"\/38.2-5001\/","token":"38.2\/50\/38.2-5001","metadata":false},{"id":77129,"structure_id":13218,"section_number":"38.2-5002","catch_line":"Virginia Birth-Related Neurological Injury Compensation Program; exclusive remedy; exception","url":"\/38.2-5002\/","token":"38.2\/50\/38.2-5002","metadata":false},{"id":66273,"structure_id":13218,"section_number":"38.2-5002.1","catch_line":"Representation by Office of Attorney General; applicability of Public Procurement Act, Freedom of Information Act, and Administrative Process Act","url":"\/38.2-5002.1\/","token":"38.2\/50\/38.2-5002.1","metadata":false},{"id":57479,"structure_id":13218,"section_number":"38.2-5002.2","catch_line":"Confidentiality of certain information; penalty","url":"\/38.2-5002.2\/","token":"38.2\/50\/38.2-5002.2","metadata":false},{"id":72413,"structure_id":13218,"section_number":"38.2-5003","catch_line":"Virginia Workers' Compensation Commission authorized to hear and determine claims","url":"\/38.2-5003\/","token":"38.2\/50\/38.2-5003","metadata":false},{"id":57908,"structure_id":13218,"section_number":"38.2-5004","catch_line":"Filing of claims; review by Board of Medicine; review by Department of Health; filing of responses; 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notice if assessments prove insufficient","url":"\/38.2-5021\/","token":"38.2\/50\/38.2-5021","metadata":false}],"previous_section":{"id":83577,"structure_id":13218,"section_number":"38.2-5001","catch_line":"Definitions","url":"\/38.2-5001\/","token":"38.2\/50\/38.2-5001","metadata":false},"next_section":{"id":66273,"structure_id":13218,"section_number":"38.2-5002.1","catch_line":"Representation by Office of Attorney General; applicability of Public Procurement Act, Freedom of Information Act, and Administrative Process Act","url":"\/38.2-5002.1\/","token":"38.2\/50\/38.2-5002.1","metadata":false},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/38.2-5002\/","history_text":"

This law was first created in 1987. The record of its establishment is cataloged in chapter 540 of that year\u2019s edition of \u201cActs of Assembly,\u201d the annual state publication listing all changes made to the Code of Virginia in that year. Unfortunately, the 1987 \u201cActs\u201d aren\u2019t available online. It has been modified 2 times. Those modifications are cataloged by \u201cThe Acts of Assembly,\u201d a state publication, by year and chapter. Those modifications that can be read on the General Assembly\u2019s website will be linked accordingly. Those modifications are as follows: in 1990, chapter 535; in 2003, chapter 897<\/a>.<\/p>","references":false,"refers_to":false,"permalink":{"id":217599,"object_type":"law","relational_id":77129,"identifier":"38.2-5002","token":"38.2\/50\/38.2-5002","url":"\/38.2-5002\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/38.2-5002\/","token":"38.2\/50\/38.2-5002","dublin_core":{"Title":"Virginia Birth-Related Neurological Injury Compensation Program; exclusive remedy; exception","Type":"Text","Format":"text\/html","Identifier":"\u00a7 38.2-5002","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> There is hereby established the Virginia Birth-Related Neurological Injury<\/span> Compensation Program<\/span>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> Except as provided in subsection D, the rights and remedies herein granted to an infant on account of a birth-related neurological injury<\/span> shall exclude all other rights and remedies of such infant, his personal representative, parents, dependents or next of kin, at common law<\/span> 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. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> Notwithstanding anything to the contrary in this section, a civil action<\/span> shall not be foreclosed against a physician or a hospital where there is clear and convincing evidence<\/span> that such physician or hospital intentionally or willfully caused or intended to cause a birth-related neurological injury<\/span>, 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<\/span> becomes conclusive and binding as provided for in § 38.2-5011<\/a>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> Notwithstanding anything to the contrary in this section, a civil action<\/span> arising out of or related to a birth-related neurological injury<\/span> 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<\/span> or hospital shall be made a party<\/span> 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<\/span> Compensation Program<\/span>, the Fund shall have the right, and be subrogated, to all of the common law<\/span> rights, based on negligence<\/span> 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<\/span> or hospital, as the case may be. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nVIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM; EXCLUSIVE\nREMEDY; EXCEPTION (\u00a7 38.2-5002)\n\nA. There is hereby established the Virginia Birth-Related Neurological Injury\nCompensation Program.\n\nB. Except as provided in subsection D, the rights and remedies herein granted to\nan infant on account of a birth-related neurological injury shall exclude all\nother rights and remedies of such infant, his personal representative, parents,\ndependents or next of kin, at common law or otherwise arising out of or related\nto a medical malpractice claim with respect to such injury to the infant,\nincluding any claims by the infant’s personal representative, parents,\ndependents or next of kin that, by substantive law, are derivative of the\nmedical malpractice claim with respect to the infant’s injury, including\nbut not limited to claims of emotional distress proximately related to the\ninfant’s injury. This subsection shall not be construed to exclude other\nrights and remedies available to the infant’s mother arising out of or\nrelated to a physical injury, separate and distinct from an injury to the\ninfant, that is suffered by the infant’s mother during the course of the\ninfant’s delivery.\n\nC. Notwithstanding anything to the contrary in this section, a civil action\nshall not be foreclosed against a physician or a hospital where there is clear\nand convincing evidence that such physician or hospital intentionally or\nwillfully caused or intended to cause a birth-related neurological injury,\nprovided that such suit is filed prior to and in lieu of payment of an award\nunder this chapter. Such suit shall be filed before the award of the Commission\nbecomes conclusive and binding as provided for in § 38.2-5011.\n\nD. Notwithstanding anything to the contrary in this section, a civil action\narising out of or related to a birth-related neurological injury under this\nchapter, brought by an infant, his personal representative, parents, dependents,\nor next of kin, shall not be foreclosed against a nonparticipating physician or\nhospital, provided that (i) no participating physician or hospital shall be made\na party to any such action or related action, and (ii) the commencement of any\nsuch action, regardless of its outcome, shall constitute an election of\nremedies, to the exclusion of any claim under this chapter; provided that if\nclaim is made, accepted and benefits are provided by the Fund established under\nthis Virginia Birth-Related Neurological Injury Compensation Program, the Fund\nshall have the right, and be subrogated, to all of the common law rights, based\non negligence or malpractice, which the said infant, his personal\nrepresentative, parents, dependents or next of kin may have or may have had\nagainst the non-participating physician or hospital, as the case may be.\n\nHISTORY: 1987, c. 540; 1990, c. 535; 2003, c. 897.","edition":{"id":1,"name":"2025","slug":"2025","date_created":"2026-06-21 22:39:22","date_modified":"2026-06-21 22:39:22","current":1,"order_by":1,"last_import":null}}