                                 CODE OF VIRGINIA

VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM; EXCLUSIVE
REMEDY; EXCEPTION (§ 38.2-5002)

A. There is hereby established the Virginia Birth-Related Neurological Injury
Compensation Program.

B. Except as provided in subsection D, the rights and remedies herein granted to
an infant on account of a birth-related neurological injury shall exclude all
other rights and remedies of such infant, 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&#8217;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&#8217;s injury, including
but not limited to claims of emotional distress proximately related to the
infant&#8217;s injury. This subsection shall not be construed to exclude other
rights and remedies available to the infant&#8217;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&#8217;s mother during the course of the
infant&#8217;s delivery.

C. Notwithstanding anything to the contrary in this section, a civil action
shall not be foreclosed against a physician or a hospital where there is clear
and convincing evidence that such physician or hospital intentionally or
willfully caused or intended to cause a birth-related neurological injury,
provided that such suit is filed prior to and in lieu of payment of an award
under this chapter. Such suit shall be filed before the award of the Commission
becomes conclusive and binding as provided for in &#xA7; 38.2-5011.

D. Notwithstanding anything to the contrary in this section, a civil action
arising out of or related to a birth-related neurological injury under this
chapter, brought by an infant, 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.

HISTORY: 1987, c. 540; 1990, c. 535; 2003, c. 897.