HD63 - The Definition of Compensable Injury and the Funding Mechanism of the Virginia Birth-Related Neurological Injury Compensation Act

  • Published: 1990
  • Author: Joint Subcommittee
  • Enabling Authority: House Joint Resolution 297 (Regular Session, 1989)

Executive Summary:
A. Authority for Study

House Joint Resolution 297 of 1989 (Appendix A) established a joint subcommittee to study the current definition of "birth-related neurological injury" under the Virginia Birth-Related Neurological Injury Compensation Act and to study its existing funding mechanism to determine whether any modification is necessary or desirable.

The subcommittee consisted of eight members as follows: five members of the House of Delegates that were appointed by the Speaker of the House; and three members of the Senate that were appointed by the Senate Committee on Privileges and Elections.

B. Overview

In 1987, the General Assembly enacted the Virginia Birth-Related Neurological Injury Compensation Act ("the Act") in response to an apparent malpractice insurance availability crisis. This law effectively removed from the tort system a narrowly defined class of infants with severe birth-related injuries who presented severe and unpredictable risks to malpractice carriers. The immediate crisis was averted when a major malpractice carrier lifted its moratorium on writing new obstetrical policies soon after enactment of the bill.

This law established a state-administered, privately generated compensation fund ("the Fund") from which claimants may receive payment for lifetime medical, hospital, and other expenses. There have been no claims filed since the Act's January 1, 1988 effective date. Largely as a result .of the absence of claims, this joint subcommittee was established to examine (i) whether the definition of injury is meeting the intent of the Act and (ii) whether any adjustment to the funding mechanism is needed.

The joint subcommittee made important progress toward strengthening the existing law by isolating aspects of the Act that may merit closer scrutiny. This report will review the subcommittee's work and will identify possible areas of study for future consideration.