In its opinion filed on February 28, 2017, the Court of Appeals of Virginia (“Appellate Court”) affirmed the decision of the Virginia Workers’ Compensation Commission (“Commission”) that the Virginia Birth-Related Neurological Injury Compensation Act (“Act”), Code §§ 38.2-5000 to -5021, did not apply to the claimant’s Virginia medical malpractice claim, and therefore the claimant was not required to accept compensation under the Act instead of proceeding with his Virginia medical malpractice lawsuit.
Virginia Birth-Related Neurological Injury Compensation Act
The Act is one of only two such statutes in the United States that provides claimants with a no-fault remedy for compensation for qualified injuries. The Act applies if the infant sustained a “birth-related neurological injury” as defined in Code § 38.2-5001.
The Appellate Court had held in a previous case that the definition of a “birth-related neurological injury” contains four elements: (1) The infant sustained “an injury to the brain or spinal cord” that was “caused by deprivation of oxygen or mechanical injury.” (2) The injury occurred “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.” (3) The injury rendered the infant “permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled.” (4) Such disability caused “the infant to be permanently in need of assistance in all activities of daily living.”
A rebuttable presumption of a birth-related neurological injury applies when the proponent proves elements one and three: when these two predicate facts are proved, the factfinder may presume that elements two and four of the statutory definition are also met.
Upon the request of a party who is a participating hospital or physician, a trial court is required to refer the case to the Commission to determine “whether the cause of action satisfies the requirements of the . . . Act.” The claim “is reviewed by a panel of three qualified and impartial physicians drawn from the fields of obstetrics, pediatrics, pediatric neurology, neonatology, physical medicine and rehabilitation, or any other specialty particularly appropriate to the facts of a particular case.” Code § 38.2-5008(B). The panel prepares a report, and in its conclusion determines whether the infant’s injury “does or does not satisfy each of the criteria of a birth-related neurological injury [as defined in] § 38.2-5001.” Code § 38.2-5008(C).
The panel determined in the present case as follows: the claimant’s mother was a healthy twenty-six-year-old with no significant medical history when she gave birth on December 4, 2007, at approximately twenty-three weeks in her pregnancy, to “an extremely preterm male infant who was immediately resuscitated by Neonatology and transferred to the Neonatal Intensive Care Unit.” The newborn (claimant) was bradycardic, flaccid, unresponsive, and required immediate resuscitation at the time of birth. The newborn was put on a ventilator to receive mechanical respiration and was not discharged from the hospital until April 10, 2008.
The panel concluded that while the claimant suffered neurological injury, it was not caused by oxygen deprivation or mechanical injury during labor or delivery; the panel found that resuscitation was necessitated by the child’s prematurity. The panel further concluded that while the claimant has some cognitive, developmental, and motoric disabilities, the evidence did not support the conclusion that he is permanently in need of assistance in all activities of daily living. Accordingly, the panel opined that the case did not qualify for inclusion under the provisions of the Act.
The full Commission unanimously found that the statutory presumption applied because there was evidence that the injury was caused by oxygen deprivation and evidence that claimant “has a permanent motoric disability and a permanent developmental disability.” However, the Commission held that the claimant’s evidence was sufficient to rebut the presumption (the “greater weight of the evidence established the infant’s oxygen deprivation and subsequent brain injury occurred because of his extreme prematurity and immature lungs,” not because of oxygen deprivation suffered during labor and delivery; further, despite claimant’s motoric and developmental disabilities, he was not permanently in need of assistance in all activities of daily living). Accordingly, the Commission dismissed the petition.
The Appellate Court Opinion
The Appellate Court held that the Commission interpreted the “timing of injury” requirement of Code § 38.2-5001 in a manner consistent with the rules of statutory construction: it did not err in determining that the relevant time for the injury to occur is when the oxygen deprivation is suffered during the course of labor or delivery or when resuscitation is necessitated by a deprivation of oxygen during labor or delivery.
The Appellate Court further held that the Commission, not the panel, was the proper body to determine whether the presumption applied.
Source Hammer v. Senecal, Record No. 0877-16-1.
If you or a loved one suffered a birth injury in Virginia or in another U.S. state, you should promptly find a Virginia birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you in a birth injury case, if appropriate.
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