                                 CODE OF VIRGINIA

COMMISSION AWARDS FOR BIRTH-RELATED NEUROLOGICAL INJURIES; NOTICE OF AWARD (§
38.2-5009)

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 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:
   				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 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.
   				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&#8217;s
   family&#8217;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&#8217;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. 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&#8217;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 &#xA7; 65.2-531 shall apply to any benefits
   awarded under this subdivision.

   3. Reasonable expenses incurred by the claimant in connection with the filing
   of a claim under this chapter, including reasonable attorneys&#8217; fees of
   the claimant&#8217;s attorney, but excluding attorney fees incurred in
   opposing a claimant&#8217;s admission pursuant to &#xA7; 8.01-273.1. Any award
   for expenses, including attorney&#8217;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.
   				A copy of the award shall be sent immediately by registered or certified
   mail to the parties.

B. 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 &#xA7; 8.01-273.1, for any attorney&#8217;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 &#xA7; 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 &#xA7; 8.01-273.1, or the requirement under &#xA7; 38.2-5002.1 that
the Program compensate the Office of the Attorney General for its provision of
legal services to the Program.

C. 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.

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.