{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/38.2-5009.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/38.2-5009.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/38.2-5009.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/38.2-5009.html"}],"law_id":78254,"edition_id":1,"section_id":78254,"structure_id":13218,"section_number":"38.2-5009","catch_line":"Commission awards for birth-related neurological injuries; notice of award","history":"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.","full_text":"A\n\nUpon 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\n\nActual 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 and attendant care that is provided by a relative or legal guardian of a Program beneficiary so long as that care is beyond the scope of child care duties and services normally and gratuitously provided by family members to uninjured children. However, such expenses shall not include:\n\t\t\t\ta. 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;\n\t\t\t\tb. 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;\n\t\t\t\tc. 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\n\t\t\t\td. 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.\n\t\t\t\tExpenses of medical and hospital services 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.\n\t\t\t\tIn 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, shall (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; (ii) require the claimant to participate in the State Medicaid Program, the Children’s Health Insurance Program or other state or federal health insurance program for which the infant is eligible; or (iii) if the Commission determines that it would be unreasonably burdensome to require the claimant to purchase private health insurance and that the infant is ineligible for a health insurance program described in clause (ii), to make an award providing compensation for the cost of private accident and sickness insurance for the infant.2\n\nLoss of earnings from the age of 18 are 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. The provisions of § 65.2-531 shall apply to any benefits awarded under this subdivision.3\n\nReasonable expenses incurred by the claimant in connection with the filing of a claim under this chapter, including reasonable attorneys’ 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’s 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.\n\t\t\t\tA copy of the award shall be sent immediately by registered or certified mail to the parties.B\n\nRegardless 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’s 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.C\n\nThe 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.","order_by":null,"text":{"0":{"id":280523,"text":"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:","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"A1"},"1":{"id":280524,"text":"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 and attendant care that is provided by a relative or legal guardian of a Program beneficiary so long as that care is beyond the scope of child care duties and services normally and gratuitously provided by family members to uninjured children. However, such expenses shall not include:\n\t\t\t\ta. 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;\n\t\t\t\tb. 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;\n\t\t\t\tc. 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\n\t\t\t\td. 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.\n\t\t\t\tExpenses of medical and hospital services 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.\n\t\t\t\tIn 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, shall (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; (ii) require the claimant to participate in the State Medicaid Program, the Children’s Health Insurance Program or other state or federal health insurance program for which the infant is eligible; or (iii) if the Commission determines that it would be unreasonably burdensome to require the claimant to purchase private health insurance and that the infant is ineligible for a health insurance program described in clause (ii), to make an award providing compensation for the cost of private accident and sickness insurance for the infant.","type":"section","prefixes":["A","1"],"prefix":"1","entire_prefix":"A1","prefix_anchor":"A1","level":2,"prior_prefix":"A","next_prefix":"A2"},"2":{"id":280525,"text":"Loss of earnings from the age of 18 are 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. The provisions of § 65.2-531 shall apply to any benefits awarded under this subdivision.","type":"section","prefixes":["A","2"],"prefix":"2","entire_prefix":"A2","prefix_anchor":"A2","level":2,"prior_prefix":"A1","next_prefix":"A3"},"3":{"id":280526,"text":"Reasonable expenses incurred by the claimant in connection with the filing of a claim under this chapter, including reasonable attorneys’ 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’s 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.\n\t\t\t\tA copy of the award shall be sent immediately by registered or certified mail to the parties.","type":"section","prefixes":["A","3"],"prefix":"3","entire_prefix":"A3","prefix_anchor":"A3","level":2,"prior_prefix":"A2","next_prefix":"B"},"4":{"id":280527,"text":"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’s 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.","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A3","next_prefix":"C"},"5":{"id":280528,"text":"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.","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":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},"next_section":{"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},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/38.2-5009\/","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 8 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, chapter 535; in 1999, chapter 823<\/a>; in 2000, chapter 1038<\/a>; in 2003, chapter 897<\/a>; in 2004, chapters 896<\/a> and 931<\/a>; in 2008, chapters 267<\/a> and 520<\/a>; in 2011, chapter 84<\/a>.<\/p>","references":[{"id":73938,"section_number":"38.2-5007","catch_line":"Interrogatories and depositions","order_by":null,"url":"\/38.2-5007\/"},{"id":87239,"section_number":"38.2-5009.1","catch_line":"Infants dying shortly after birth","order_by":null,"url":"\/38.2-5009.1\/"},{"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\/"},{"id":60095,"section_number":"38.2-5015","catch_line":"Birth-Related Neurological Injury Compensation Fund; assets of the Fund; audit","order_by":null,"url":"\/38.2-5015\/"},{"id":54316,"section_number":"38.2-5016","catch_line":"Board of directors; appointment; vacancies; term; list of Program claimants","order_by":null,"url":"\/38.2-5016\/"},{"id":83214,"section_number":"8.01-273.1","catch_line":"Motion for judgment; motion to refer; Virginia Birth-Related Neurological Injury Compensation Act","order_by":null,"url":"\/8.01-273.1\/"}],"refers_to":[{"id":66273,"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","order_by":null,"url":"\/38.2-5002.1\/"},{"id":84247,"section_number":"65.2-531","catch_line":"Assignments of compensation; exemption from creditors' claims","order_by":null,"url":"\/65.2-531\/"},{"id":83214,"section_number":"8.01-273.1","catch_line":"Motion for judgment; motion to refer; Virginia Birth-Related Neurological Injury Compensation Act","order_by":null,"url":"\/8.01-273.1\/"}],"permalink":{"id":217643,"object_type":"law","relational_id":78254,"identifier":"38.2-5009","token":"38.2\/50\/38.2-5009","url":"\/38.2-5009\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/38.2-5009\/","token":"38.2\/50\/38.2-5009","dublin_core":{"Title":"Commission awards for birth-related neurological injuries; notice of award","Type":"Text","Format":"text\/html","Identifier":"\u00a7 38.2-5009","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> Upon determining (i) that an infant has sustained a birth-related neurological injury<\/span> and (ii) that obstetrical services were delivered by a participating physician<\/span> at the birth or that the birth occurred in a participating hospital<\/span>, the Commission<\/span> shall make an award providing compensation for the following items relative to such injury: <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

1.<\/span> 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 and attendant care that is provided by a relative or legal guardian of a Program<\/span> beneficiary so long as that care is beyond the scope of child care duties and services normally and gratuitously provided by family members to uninjured children. However, such expenses shall not include:\n\t\t\t\ta. Expenses for items or services that the infant has received, or is entitled to receive, under the laws<\/span> of any state<\/span> or the federal government except to the extent prohibited by federal law<\/span>;\n\t\t\t\tb. 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;\n\t\t\t\tc. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws<\/span> of any state<\/span> or federal government except to the extent prohibited by federal law<\/span>; and\n\t\t\t\td. 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<\/span> policy or other private insurance<\/span> program<\/span>.\n\t\t\t\tExpenses of medical and hospital services under this subdivision shall be limited to such charges as prevail in the same community for similar treatment of injured persons<\/span> of a like standard of living when such treatment is paid for by the injured person<\/span>.\n\t\t\t\tIn order<\/span> to provide coverage for expenses of medical and hospital services under this subdivision, the Commission<\/span>, in all cases where a comparative analysis of the costs, including the effects on the infant’s family’s health insurance<\/span> coverage, and benefits indicates that such action is more cost-effective than awarding payment of medical and hospital expenses, shall (i) require the claimant<\/span> to purchase private health insurance<\/span> providing coverage for such expenses, provided that the premium or other costs of such coverage shall be paid by the Fund; (ii) require the claimant<\/span> to participate in the State<\/span> Medicaid Program<\/span>, the Children’s Health Insurance<\/span> Program<\/span> or other state<\/span> or federal health insurance<\/span> program<\/span> for which the infant is eligible; or (iii) if the Commission<\/span> determines that it would be unreasonably burdensome to require the claimant<\/span> to purchase private health insurance<\/span> and that the infant is ineligible for a health insurance<\/span> program<\/span> described in clause (ii), to make an award providing compensation for the cost of private accident and sickness insurance<\/span> for the infant. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

2.<\/span> Loss of earnings from the age of 18 are 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<\/span> 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<\/span> child, and subsequently adjusted based upon the succeeding annual reports of the Commonwealth. The provisions of § 65.2-531<\/a> shall apply to any benefits awarded under this subdivision. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

3.<\/span> Reasonable expenses incurred by the claimant<\/span> in connection with the filing of a claim under this chapter, including reasonable attorneys’ fees of the claimant<\/span>’s attorney, but excluding attorney fees incurred in opposing a claimant<\/span>’s admission pursuant to § 8.01-273.1<\/a>. Any award for expenses, including attorney’s fees, incurred by the claimant<\/span> in connection with the filing of a claim under this chapter shall be subject to the approval and award of the Commission<\/span>.\n\t\t\t\tA copy of the award shall be sent immediately by registered or certified mail to the parties. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

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

C.<\/span> 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. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nCOMMISSION AWARDS FOR BIRTH-RELATED NEUROLOGICAL INJURIES; NOTICE OF AWARD (\u00a7\n38.2-5009)\n\nA. Upon determining (i) that an infant has sustained a birth-related\nneurological injury and (ii) that obstetrical services were delivered by a\nparticipating physician at the birth or that the birth occurred in a\nparticipating hospital, the Commission shall make an award providing\ncompensation for the following items relative to such injury:\n\n 1. Actual medically necessary and reasonable expenses of medical and hospital,\n rehabilitative, therapeutic, nursing, attendant, residential and custodial\n care and service, medications, supplies, special equipment or facilities, and\n related travel, such expenses to be paid as they are incurred. Reimbursement\n may be provided for nursing and attendant care that is provided by a relative\n or legal guardian of a Program beneficiary so long as that care is beyond the\n scope of child care duties and services normally and gratuitously provided by\n family members to uninjured children. However, such expenses shall not\n include:\n \t\t\t\ta. Expenses for items or services that the infant has received, or is\n entitled to receive, under the laws of any state or the federal government\n except to the extent prohibited by federal law;\n \t\t\t\tb. Expenses for items or services that the infant has received, or is\n contractually entitled to receive, from any prepaid health plan, health\n maintenance organization, or other private insuring entity;\n \t\t\t\tc. Expenses for which the infant has received reimbursement, or for which\n the infant is entitled to receive reimbursement, under the laws of any state\n or federal government except to the extent prohibited by federal law; and\n \t\t\t\td. Expenses for which the infant has received reimbursement, or for which\n the infant is contractually entitled to receive reimbursement, pursuant to the\n provisions of any health or sickness insurance policy or other private\n insurance program.\n \t\t\t\tExpenses of medical and hospital services under this subdivision shall be\n limited to such charges as prevail in the same community for similar treatment\n of injured persons of a like standard of living when such treatment is paid\n for by the injured person.\n \t\t\t\tIn order to provide coverage for expenses of medical and hospital services\n under this subdivision, the Commission, in all cases where a comparative\n analysis of the costs, including the effects on the infant’s\n family’s health insurance coverage, and benefits indicates that such\n action is more cost-effective than awarding payment of medical and hospital\n expenses, shall (i) require the claimant to purchase private health insurance\n providing coverage for such expenses, provided that the premium or other costs\n of such coverage shall be paid by the Fund; (ii) require the claimant to\n participate in the State Medicaid Program, the Children’s Health\n Insurance Program or other state or federal health insurance program for which\n the infant is eligible; or (iii) if the Commission determines that it would be\n unreasonably burdensome to require the claimant to purchase private health\n insurance and that the infant is ineligible for a health insurance program\n described in clause (ii), to make an award providing compensation for the cost\n of private accident and sickness insurance for the infant.\n\n 2. Loss of earnings from the age of 18 are to be paid in regular installments\n beginning on the eighteenth birthday of the infant. An infant found to have\n sustained a birth-related neurological injury shall be conclusively presumed\n to have been able to earn income from work from the age of 18 through the age\n of 65, if he had not been injured, in the amount of 50 percent of the average\n weekly wage in the Commonwealth of workers in the private, nonfarm sector.\n Payments shall be calculated based on the Commonwealth’s reporting\n period immediately preceding the 18th birthday of the claimant child, and\n subsequently adjusted based upon the succeeding annual reports of the\n Commonwealth. The provisions of § 65.2-531 shall apply to any benefits\n awarded under this subdivision.\n\n 3. Reasonable expenses incurred by the claimant in connection with the filing\n of a claim under this chapter, including reasonable attorneys’ fees of\n the claimant’s attorney, but excluding attorney fees incurred in\n opposing a claimant’s admission pursuant to § 8.01-273.1. Any award\n for expenses, including attorney’s fees, incurred by the claimant in\n connection with the filing of a claim under this chapter shall be subject to\n the approval and award of the Commission.\n \t\t\t\tA copy of the award shall be sent immediately by registered or certified\n mail to the parties.\n\nB. Regardless of whether the Commission makes either of the determinations\ndescribed in clauses (i) and (ii) of subsection A, the Commission shall not\naward compensation in connection with a claim under this chapter, or any claim\npursuant to § 8.01-273.1, for any attorney’s fees or other expenses\nincurred by any physician, hospital, or nurse midwife that is party to a\nproceeding under this chapter, or pursuant to § 8.01-273.1, or by a medical\nmalpractice liability insurer of such party. This prohibition shall not affect\nthe requirement that the Program make reimbursement for photocopying costs as\nset forth in § 8.01-273.1, or the requirement under § 38.2-5002.1 that\nthe Program compensate the Office of the Attorney General for its provision of\nlegal services to the Program.\n\nC. The amendments to this section enacted pursuant to Chapter 535 of the Acts of\nAssembly of 1990 shall be retroactively effective in all cases arising prior to\nJuly 1, 1990, that have been timely filed and are not yet final.\n\nHISTORY: 1987, c. 540; 1989, c. 523; 1990, c. 535; 1999, c. 823; 2000, c. 1038;\n2003, c. 897; 2004, cc. 896, 931; 2008, cc. 267, 520; 2011, c. 84.","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}}