January 27, 2020

Understanding the Virginia Birth-Related Neurological Injury Compensation Program

By Douglas E. Penner


The Virginia Birth-Related Neurological Injury Compensation Act, which created the Program, was passed by the Virginia General Assembly in 1987. The Act was intended to remove malpractice lawsuits from the court system and to provide an alternative way of compensating patients for medical expenses related to birth injuries. To be eligible for the program, an infant must meet the specific definition for birth-related neurological injury and the obstetrical services must have been performed by a physician or at a hospital that specifically participates in the birth injury program.  

The Program is administered by the Virginia Workers’ Compensation Commission (not the courts) and is designed as a no-fault system of compensation. Therefore, it does not require a finding of malpractice in order to provide compensation. By opting to deliver a baby at a participating hospital and/or with a participating physician, the baby’s family automatically waives the right to bring a medical malpractice lawsuit against the participating physician and/or hospital if the baby incurs a birth injury that meets the applicable definition. The benefits offered by the Program are potentially greater than what could be recovered in a medical malpractice award, as malpractice damages are capped under Virginia law. The Program is intended to help take care of the injured child for life.

There are three requirements for acceptance into the Program.
First, the licensed physician or nurse midwife and/or the hospital where delivery takes place must be participating providers. Among other things, this means they must have in force an agreement with the Board of Medicine whereby the physician and/or hospital agrees to submit to a review by the Board of the obstetrical services. In addition, they must have paid the participation assessment for the period of time in which the birth-related neurological injury occurred.

Second, the participating physician and/or hospital must give written notification to the obstetrical patient indicating whether or not they participate in the Program. The timing and details of the disclosure are not prescribed by law, but a brochure entitled “A lifetime of help” has been created by the Program for use by participating hospitals and physicians to explain the Program and the Virginia law establishing it. For a printable copy of the brochure, please see: 


Finally, the injury must meet the definition for the particular type of birth-related neurological injury that qualifies for the Program. Specifically, an injury to the brain or spinal cord of an infant caused by the deprivation of oxygen, or mechanical injury occurring in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen, or mechanical injury that occurred in the course of labor or delivery in a hospital, which renders the infant permanently motorically disabled and developmentally disabled, or, for infants sufficiently developed to be cognitively evaluated, cognitively disabled, meets the definition of a qualifying injury.

Failure to comply with each of these requirements could jeopardize a provider’s participation in the Program and/or the chances that a particular claim will be accepted for compensation. Please consult legal counsel for legal advice specific to your question.

Douglas Penner is an attorney with the law firm of Goodman Allen Donnelly. He specializes in hospital risk management, medical malpractice defense, health care law, and State Board licensing and credentialing matters. www.goodmanallen.com