{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/38.2-5008.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/38.2-5008.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/38.2-5008.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/38.2-5008.html"}],"law_id":62457,"edition_id":1,"section_id":62457,"structure_id":13218,"section_number":"38.2-5008","catch_line":"Determination of claims; presumption; finding of Virginia Workers’ Compensation Commission binding on participants; medical advisory panel","history":"1987, c. 540; 1989, c. 523; 1990, cc. 534, 535; 2003, c. 897; 2008, cc. 267, 520; 2023, cc. 756, 778.","full_text":"A\n\nThe Commission shall determine, on the basis of the evidence presented to it, the following issues:1\n\nWhether the injury claimed is a birth-related neurological injury as defined in § 38.2-5001.\n\t\t\t\ta. A rebuttable presumption shall arise that the injury alleged is a birth-related neurological injury where it has been demonstrated, to the satisfaction of the Virginia Workers’ Compensation Commission, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and that the infant was thereby rendered permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled.\n\t\t\t\tIf either party disagrees with such presumption, that party shall have the burden of proving that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter.\n\t\t\t\tb. A rebuttable presumption of fetal distress, an element of a birth-related injury, shall arise if the hospital fails to provide the fetal heart monitor tape to the claimant, as required by subsection E of § 38.2-5004.2\n\nWhether obstetrical services were delivered by a participating physician at the birth.3\n\nWhether the birth occurred in a participating hospital.4\n\nHow much compensation, if any, is awardable pursuant to § 38.2-5009.5\n\nIf the Commission determines (i) that the injury alleged is not a birth-related neurological injury as defined in § 38.2-5001, or (ii) that obstetrical services were not delivered by a participating physician at the birth and that the birth did not occur in a participating hospital, it shall dismiss the petition and cause a copy of its order of dismissal to be sent immediately to the parties by registered or certified mail.6\n\nAll parties are bound for all purposes including any suit at law against a participating physician or participating hospital, by the finding of the Virginia Workers’ Compensation Commission (or any appeal therefrom) with respect to whether such injury is a birth-related neurological injury.B\n\nThe deans of the schools of medicine of the Eastern Virginia Health Sciences Center at Old Dominion University, University of Virginia School of Medicine, and Medical College of Virginia of Virginia Commonwealth University shall develop a plan whereby each claim filed with the Commission is reviewed by a panel of three qualified and impartial physicians drawn from the fields of obstetrics, pediatrics, pediatric neurology, neonatology, physical medicine and rehabilitation, or any other specialty particularly appropriate to the facts of a particular case. Such plan shall provide that each of the three aforementioned medical schools shall maintain a review panel of physicians to review claims, with responsibility for reviewing claims rotating among each medical school’s panel on a case-by-case basis. The chair of the panel shall be determined by the school’s dean. In no event shall the panel contain more than one panel member from the field of obstetrics. The Commission shall direct the Program to pay to the medical school that performed the assessment and prepared a report in conformity with this provision the sum of $3,000 per claim reviewed.C\n\nThe panel created pursuant to subsection B shall prepare a report that provides a detailed statement of the opinion of the panel’s members regarding whether the infant’s injury does or does not satisfy each of the criteria of a birth-related neurological injury enumerated in such term’s definition in § 38.2-5001. The report shall include the panel’s basis for its determination of whether each such criteria was or was not satisfied. In addition, the report shall include such supporting documentation as the board of directors of the program may reasonably request. The panel shall file its report with the Commission 60 days from the date the petition was filed with the Commission. At the same time that the panel files its report with the Commission, the panel shall send copies thereof to the Program and all parties in the proceeding. At the request of the Commission, at least one member of the panel shall be available to testify at the hearing. The Commission shall consider, but shall not be bound by, the recommendation of the panel.","order_by":null,"text":{"0":{"id":227800,"text":"The Commission shall determine, on the basis of the evidence presented to it, the following issues:","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"A1"},"1":{"id":227801,"text":"Whether the injury claimed is a birth-related neurological injury as defined in § 38.2-5001.\n\t\t\t\ta. A rebuttable presumption shall arise that the injury alleged is a birth-related neurological injury where it has been demonstrated, to the satisfaction of the Virginia Workers’ Compensation Commission, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and that the infant was thereby rendered permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled.\n\t\t\t\tIf either party disagrees with such presumption, that party shall have the burden of proving that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter.\n\t\t\t\tb. A rebuttable presumption of fetal distress, an element of a birth-related injury, shall arise if the hospital fails to provide the fetal heart monitor tape to the claimant, as required by subsection E of § 38.2-5004.","type":"section","prefixes":["A","1"],"prefix":"1","entire_prefix":"A1","prefix_anchor":"A1","level":2,"prior_prefix":"A","next_prefix":"A2"},"2":{"id":227802,"text":"Whether obstetrical services were delivered by a participating physician at the birth.","type":"section","prefixes":["A","2"],"prefix":"2","entire_prefix":"A2","prefix_anchor":"A2","level":2,"prior_prefix":"A1","next_prefix":"A3"},"3":{"id":227803,"text":"Whether the birth occurred in a participating hospital.","type":"section","prefixes":["A","3"],"prefix":"3","entire_prefix":"A3","prefix_anchor":"A3","level":2,"prior_prefix":"A2","next_prefix":"A4"},"4":{"id":227804,"text":"How much compensation, if any, is awardable pursuant to § 38.2-5009.","type":"section","prefixes":["A","4"],"prefix":"4","entire_prefix":"A4","prefix_anchor":"A4","level":2,"prior_prefix":"A3","next_prefix":"A5"},"5":{"id":227805,"text":"If the Commission determines (i) that the injury alleged is not a birth-related neurological injury as defined in § 38.2-5001, or (ii) that obstetrical services were not delivered by a participating physician at the birth and that the birth did not occur in a participating hospital, it shall dismiss the petition and cause a copy of its order of dismissal to be sent immediately to the parties by registered or certified mail.","type":"section","prefixes":["A","5"],"prefix":"5","entire_prefix":"A5","prefix_anchor":"A5","level":2,"prior_prefix":"A4","next_prefix":"A6"},"6":{"id":227806,"text":"All parties are bound for all purposes including any suit at law against a participating physician or participating hospital, by the finding of the Virginia Workers’ Compensation Commission (or any appeal therefrom) with respect to whether such injury is a birth-related neurological injury.","type":"section","prefixes":["A","6"],"prefix":"6","entire_prefix":"A6","prefix_anchor":"A6","level":2,"prior_prefix":"A5","next_prefix":"B"},"7":{"id":227807,"text":"The deans of the schools of medicine of the Eastern Virginia Health Sciences Center at Old Dominion University, University of Virginia School of Medicine, and Medical College of Virginia of Virginia Commonwealth University shall develop a plan whereby each claim filed with the Commission is reviewed by a panel of three qualified and impartial physicians drawn from the fields of obstetrics, pediatrics, pediatric neurology, neonatology, physical medicine and rehabilitation, or any other specialty particularly appropriate to the facts of a particular case. Such plan shall provide that each of the three aforementioned medical schools shall maintain a review panel of physicians to review claims, with responsibility for reviewing claims rotating among each medical school’s panel on a case-by-case basis. The chair of the panel shall be determined by the school’s dean. In no event shall the panel contain more than one panel member from the field of obstetrics. The Commission shall direct the Program to pay to the medical school that performed the assessment and prepared a report in conformity with this provision the sum of $3,000 per claim reviewed.","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A6","next_prefix":"C"},"8":{"id":227808,"text":"The panel created pursuant to subsection B shall prepare a report that provides a detailed statement of the opinion of the panel’s members regarding whether the infant’s injury does or does not satisfy each of the criteria of a birth-related neurological injury enumerated in such term’s definition in § 38.2-5001. The report shall include the panel’s basis for its determination of whether each such criteria was or was not satisfied. In addition, the report shall include such supporting documentation as the board of directors of the program may reasonably request. The panel shall file its report with the Commission 60 days from the date the petition was filed with the Commission. At the same time that the panel files its report with the Commission, the panel shall send copies thereof to the Program and all parties in the proceeding. At the request of the Commission, at least one member of the panel shall be available to testify at the hearing. The Commission shall consider, but shall not be bound by, the recommendation of the panel.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B"}},"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; medical records","url":"\/38.2-5004\/","token":"38.2\/50\/38.2-5004","metadata":false},{"id":54226,"structure_id":13218,"section_number":"38.2-5004.1","catch_line":"Notification of possible beneficiaries","url":"\/38.2-5004.1\/","token":"38.2\/50\/38.2-5004.1","metadata":false},{"id":59287,"structure_id":13218,"section_number":"38.2-5005","catch_line":"Tolling of statute of limitations","url":"\/38.2-5005\/","token":"38.2\/50\/38.2-5005","metadata":false},{"id":62777,"structure_id":13218,"section_number":"38.2-5006","catch_line":"Hearing; parties","url":"\/38.2-5006\/","token":"38.2\/50\/38.2-5006","metadata":false},{"id":73938,"structure_id":13218,"section_number":"38.2-5007","catch_line":"Interrogatories and depositions","url":"\/38.2-5007\/","token":"38.2\/50\/38.2-5007","metadata":false},{"id":62457,"structure_id":13218,"section_number":"38.2-5008","catch_line":"Determination of claims; presumption; finding of Virginia Workers' Compensation Commission binding on participants; medical advisory panel","url":"\/38.2-5008\/","token":"38.2\/50\/38.2-5008","metadata":false},{"id":85578,"structure_id":13218,"section_number":"38.2-5008.1","catch_line":"Right to confront and cross-examine witnesses","url":"\/38.2-5008.1\/","token":"38.2\/50\/38.2-5008.1","metadata":false},{"id":78254,"structure_id":13218,"section_number":"38.2-5009","catch_line":"Commission awards for birth-related neurological injuries; notice of award","url":"\/38.2-5009\/","token":"38.2\/50\/38.2-5009","metadata":false},{"id":87239,"structure_id":13218,"section_number":"38.2-5009.1","catch_line":"Infants dying shortly after birth","url":"\/38.2-5009.1\/","token":"38.2\/50\/38.2-5009.1","metadata":false},{"id":79332,"structure_id":13218,"section_number":"38.2-5010","catch_line":"Rehearing on Commission determination or award","url":"\/38.2-5010\/","token":"38.2\/50\/38.2-5010","metadata":false},{"id":67787,"structure_id":13218,"section_number":"38.2-5011","catch_line":"Conclusiveness of determination or award; appeal","url":"\/38.2-5011\/","token":"38.2\/50\/38.2-5011","metadata":false},{"id":86971,"structure_id":13218,"section_number":"38.2-5012","catch_line":"Enforcement, etc., of orders and awards","url":"\/38.2-5012\/","token":"38.2\/50\/38.2-5012","metadata":false},{"id":54550,"structure_id":13218,"section_number":"38.2-5013","catch_line":"Limitation on claims","url":"\/38.2-5013\/","token":"38.2\/50\/38.2-5013","metadata":false},{"id":76811,"structure_id":13218,"section_number":"38.2-5014","catch_line":"Scope","url":"\/38.2-5014\/","token":"38.2\/50\/38.2-5014","metadata":false},{"id":60095,"structure_id":13218,"section_number":"38.2-5015","catch_line":"Birth-Related Neurological Injury Compensation Fund; assets of the Fund; audit","url":"\/38.2-5015\/","token":"38.2\/50\/38.2-5015","metadata":false},{"id":54316,"structure_id":13218,"section_number":"38.2-5016","catch_line":"Board of directors; appointment; vacancies; term; list of Program claimants","url":"\/38.2-5016\/","token":"38.2\/50\/38.2-5016","metadata":false},{"id":54427,"structure_id":13218,"section_number":"38.2-5016.1","catch_line":"Investment strategy advice; expected returns","url":"\/38.2-5016.1\/","token":"38.2\/50\/38.2-5016.1","metadata":false},{"id":65282,"structure_id":13218,"section_number":"38.2-5017","catch_line":"Plan of operation","url":"\/38.2-5017\/","token":"38.2\/50\/38.2-5017","metadata":false},{"id":61928,"structure_id":13218,"section_number":"38.2-5018","catch_line":"Assessments to be held in restricted cash account","url":"\/38.2-5018\/","token":"38.2\/50\/38.2-5018","metadata":false},{"id":72367,"structure_id":13218,"section_number":"38.2-5019","catch_line":"Repealed","url":"\/38.2-5019\/","token":"38.2\/50\/38.2-5019","metadata":false},{"id":66131,"structure_id":13218,"section_number":"38.2-5020","catch_line":"Assessments","url":"\/38.2-5020\/","token":"38.2\/50\/38.2-5020","metadata":false},{"id":65425,"structure_id":13218,"section_number":"38.2-5020.1","catch_line":"Credits against malpractice insurance premiums","url":"\/38.2-5020.1\/","token":"38.2\/50\/38.2-5020.1","metadata":false},{"id":84304,"structure_id":13218,"section_number":"38.2-5021","catch_line":"Actuarial investigation, valuations, gain\/loss analysis; notice if assessments prove insufficient","url":"\/38.2-5021\/","token":"38.2\/50\/38.2-5021","metadata":false}],"previous_section":{"id":73938,"structure_id":13218,"section_number":"38.2-5007","catch_line":"Interrogatories and depositions","url":"\/38.2-5007\/","token":"38.2\/50\/38.2-5007","metadata":false},"next_section":{"id":85578,"structure_id":13218,"section_number":"38.2-5008.1","catch_line":"Right to confront and cross-examine witnesses","url":"\/38.2-5008.1\/","token":"38.2\/50\/38.2-5008.1","metadata":false},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/38.2-5008\/","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 5 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 1989, chapter 523; in 1990, chapters 534 and 535; in 2003, chapter 897<\/a>; in 2008, chapters 267<\/a> and 520<\/a>; in 2023, chapters 756<\/a> and 778<\/a>.<\/p>","references":[{"id":57908,"section_number":"38.2-5004","catch_line":"Filing of claims; review by Board of Medicine; review by Department of Health; filing of responses; medical records","order_by":null,"url":"\/38.2-5004\/"},{"id":79332,"section_number":"38.2-5010","catch_line":"Rehearing on Commission determination or award","order_by":null,"url":"\/38.2-5010\/"},{"id":67787,"section_number":"38.2-5011","catch_line":"Conclusiveness of determination or award; appeal","order_by":null,"url":"\/38.2-5011\/"}],"refers_to":[{"id":83577,"section_number":"38.2-5001","catch_line":"Definitions","order_by":null,"url":"\/38.2-5001\/"}],"permalink":{"id":217635,"object_type":"law","relational_id":62457,"identifier":"38.2-5008","token":"38.2\/50\/38.2-5008","url":"\/38.2-5008\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/38.2-5008\/","token":"38.2\/50\/38.2-5008","dublin_core":{"Title":"Determination of claims; presumption; finding of Virginia Workers’ Compensation Commission binding on participants; medical advisory panel","Type":"Text","Format":"text\/html","Identifier":"\u00a7 38.2-5008","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> The Commission<\/span> shall determine, on the basis of the evidence<\/span> presented to it, the following issues<\/span>: <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

1.<\/span> Whether the injury claimed is a birth-related neurological injury<\/span> as defined in § 38.2-5001<\/a>.\n\t\t\t\ta. A rebuttable presumption<\/span> shall arise that the injury alleged is a birth-related neurological injury<\/span> where it has been demonstrated, to the satisfaction of the Virginia Workers’ Compensation Commission<\/span>, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and that the infant was thereby rendered permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled.\n\t\t\t\tIf either party<\/span> disagrees with such presumption<\/span>, that party<\/span> shall have the burden of proving that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter.\n\t\t\t\tb. A rebuttable presumption<\/span> of fetal distress, an element of a birth-related injury, shall arise if the hospital fails to provide the fetal heart monitor tape to the claimant<\/span>, as required by subsection E of § 38.2-5004<\/a>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

2.<\/span> Whether obstetrical services were delivered by a participating physician<\/span> at the birth. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

3.<\/span> Whether the birth occurred in a participating hospital<\/span>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

4.<\/span> How much compensation, if any, is awardable pursuant to § 38.2-5009<\/a>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

5.<\/span> If the Commission<\/span> determines (i) that the injury alleged is not a birth-related neurological injury<\/span> as defined in § 38.2-5001<\/a>, or (ii) that obstetrical services were not delivered by a participating physician<\/span> at the birth and that the birth did not occur in a participating hospital<\/span>, it shall dismiss the petition<\/span> and cause a copy of its order<\/span> of dismissal<\/span> to be sent immediately to the parties by registered or certified mail. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

6.<\/span> All parties are bound for all purposes including any suit at law<\/span> against a participating physician<\/span> or participating hospital<\/span>, by the finding<\/span> of the Virginia Workers’ Compensation Commission<\/span> (or any appeal<\/span> therefrom) with respect to whether such injury is a birth-related neurological injury<\/span>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> The deans of the schools of medicine of the Eastern Virginia Health Sciences Center at Old Dominion University, University of Virginia School of Medicine, and Medical College of Virginia of Virginia Commonwealth University shall develop a plan whereby each claim filed with the Commission<\/span> is reviewed by a panel<\/span> of three qualified and impartial physicians drawn from the fields of obstetrics, pediatrics, pediatric neurology, neonatology, physical medicine and rehabilitation, or any other specialty particularly appropriate to the facts<\/span> of a particular case. Such plan shall provide that each of the three aforementioned medical schools shall maintain a review panel<\/span> of physicians to review claims, with responsibility for reviewing claims rotating among each medical school’s panel<\/span> on a case-by-case basis. The chair of the panel<\/span> shall be determined by the school’s dean. In no event shall the panel<\/span> contain more than one panel<\/span> member from the field of obstetrics. The Commission<\/span> shall direct the Program<\/span> to pay to the medical school that performed the assessment and prepared a report in conformity with this provision the sum of $3,000 per claim reviewed. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> The panel<\/span> created pursuant to subsection B shall prepare a report that provides a detailed statement of the opinion<\/span> of the panel<\/span>’s members regarding whether the infant’s injury does or does not satisfy each of the criteria of a birth-related neurological injury<\/span> enumerated in such term’s definition in § 38.2-5001<\/a>. The report shall include the panel<\/span>’s basis for its determination of whether each such criteria was or was not satisfied. In addition, the report shall include such supporting documentation as the board of directors of the program<\/span> may reasonably request. The panel<\/span> shall file its report with the Commission<\/span> 60 days from the date the petition<\/span> was filed with the Commission<\/span>. At the same time that the panel<\/span> files its report with the Commission<\/span>, the panel<\/span> shall send copies thereof to the Program<\/span> and all parties in the proceeding. At the request of the Commission<\/span>, at least one member of the panel<\/span> shall be available to testify at the hearing<\/span>. The Commission<\/span> shall consider, but shall not be bound by, the recommendation of the panel<\/span>. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nDETERMINATION OF CLAIMS; PRESUMPTION; FINDING OF VIRGINIA WORKERS’\nCOMPENSATION COMMISSION BINDING ON PARTICIPANTS; MEDICAL ADVISORY PANEL (\u00a7\n38.2-5008)\n\nA. The Commission shall determine, on the basis of the evidence presented to it,\nthe following issues:\n\n 1. Whether the injury claimed is a birth-related neurological injury as\n defined in § 38.2-5001.\n \t\t\t\ta. A rebuttable presumption shall arise that the injury alleged is a\n birth-related neurological injury where it has been demonstrated, to the\n satisfaction of the Virginia Workers’ Compensation Commission, that the\n infant has sustained a brain or spinal cord injury caused by oxygen\n deprivation or mechanical injury, and that the infant was thereby rendered\n permanently motorically disabled and (i) developmentally disabled or (ii) for\n infants sufficiently developed to be cognitively evaluated, cognitively\n disabled.\n \t\t\t\tIf either party disagrees with such presumption, that party shall have the\n burden of proving that the injuries alleged are not birth-related neurological\n injuries within the meaning of the chapter.\n \t\t\t\tb. A rebuttable presumption of fetal distress, an element of a\n birth-related injury, shall arise if the hospital fails to provide the fetal\n heart monitor tape to the claimant, as required by subsection E of §\n 38.2-5004.\n\n 2. Whether obstetrical services were delivered by a participating physician at\n the birth.\n\n 3. Whether the birth occurred in a participating hospital.\n\n 4. How much compensation, if any, is awardable pursuant to § 38.2-5009.\n\n 5. If the Commission determines (i) that the injury alleged is not a\n birth-related neurological injury as defined in § 38.2-5001, or (ii) that\n obstetrical services were not delivered by a participating physician at the\n birth and that the birth did not occur in a participating hospital, it shall\n dismiss the petition and cause a copy of its order of dismissal to be sent\n immediately to the parties by registered or certified mail.\n\n 6. All parties are bound for all purposes including any suit at law against a\n participating physician or participating hospital, by the finding of the\n Virginia Workers’ Compensation Commission (or any appeal therefrom) with\n respect to whether such injury is a birth-related neurological injury.\n\nB. The deans of the schools of medicine of the Eastern Virginia Health Sciences\nCenter at Old Dominion University, University of Virginia School of Medicine,\nand Medical College of Virginia of Virginia Commonwealth University shall\ndevelop a plan whereby each claim filed with the Commission is reviewed by a\npanel of three qualified and impartial physicians drawn from the fields of\nobstetrics, pediatrics, pediatric neurology, neonatology, physical medicine and\nrehabilitation, or any other specialty particularly appropriate to the facts of\na particular case. Such plan shall provide that each of the three aforementioned\nmedical schools shall maintain a review panel of physicians to review claims,\nwith responsibility for reviewing claims rotating among each medical\nschool’s panel on a case-by-case basis. The chair of the panel shall be\ndetermined by the school’s dean. In no event shall the panel contain more\nthan one panel member from the field of obstetrics. The Commission shall direct\nthe Program to pay to the medical school that performed the assessment and\nprepared a report in conformity with this provision the sum of $3,000 per claim\nreviewed.\n\nC. The panel created pursuant to subsection B shall prepare a report that\nprovides a detailed statement of the opinion of the panel’s members\nregarding whether the infant’s injury does or does not satisfy each of the\ncriteria of a birth-related neurological injury enumerated in such term’s\ndefinition in § 38.2-5001. The report shall include the panel’s basis\nfor its determination of whether each such criteria was or was not satisfied. In\naddition, the report shall include such supporting documentation as the board of\ndirectors of the program may reasonably request. The panel shall file its report\nwith the Commission 60 days from the date the petition was filed with the\nCommission. At the same time that the panel files its report with the\nCommission, the panel shall send copies thereof to the Program and all parties\nin the proceeding. At the request of the Commission, at least one member of the\npanel shall be available to testify at the hearing. The Commission shall\nconsider, but shall not be bound by, the recommendation of the panel.\n\nHISTORY: 1987, c. 540; 1989, c. 523; 1990, cc. 534, 535; 2003, c. 897; 2008, cc.\n267, 520; 2023, cc. 756, 778.","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}}