Virginia Law

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, attendant, residential, and custodial care that is provided by a relative or legal guardian of a Program beneficiary. 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 for medical, hospital, rehabilitative, therapeutic, nursing, attendant, residential, and custodial care services and medications, supplies, special equipment, or facilities 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's family's health insurance coverage, and benefits indicates that such action is more cost-effective than awarding payment of medical and hospital expenses, may (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 or (ii) if the Commission determines that it would be unreasonably burdensome to require the claimant to purchase private health insurance, to make an award providing compensation for the cost of private accident and sickness insurance for the infant.

2. Reasonable expenses associated with private health insurance premiums.

3. Reasonable and medically necessary housing assistance for the life of the infant, including home construction and modification costs.

4. Reasonable and medically necessary expenses associated with the purchase of a motor vehicle specifically equipped to accommodate persons with disabilities.

5. A total annual benefit of up to $10,000 for immediate family members who reside with the infant for psychotherapeutic services.

6. Loss of earnings from the age of 18 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. Expenses associated with appointment of a legal guardian, creation of trust documents, or other expenses necessary to receive payments under this provision shall be considered expenses incurred by the claimant in connection with the filing of a claim. The provisions of § 65.2-531 shall apply to any benefits awarded under this subdivision.

7. Reasonable expenses associated with the funeral, burial, cremation, and disposition of the remains of such infant, not to exceed $10,000.

8. Reasonable expenses incurred by the claimant in connection with the filing of a claim under this chapter, including reasonable attorney 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 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.

9. Reasonable expenses associated with the services of an education advocate.

B. Where the Commission finds the Program has delayed payment or reimbursement of a covered benefit without reasonable grounds, the Commission shall calculate and add to the amount of the covered benefit an award of interest at the judgment rate from the date payment or reimbursement of the covered benefit was first requested.

C. 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 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.

D. 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.

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; 2026, cc. 1010, 1083.