§ 38.2-5002. Virginia Birth-Related Neurological Injury Compensation Program;exclusive remedy; exception.
A. There is hereby established the Virginia Birth-Related Neurological InjuryCompensation Program.
B. Except as provided in subsection D, the rights and remedies herein grantedto an infant on account of a birth-related neurological injury shall excludeall other rights and remedies of such infant, his personal representative,parents, dependents or next of kin, at common law or otherwise arising out ofor related to a medical malpractice claim with respect to such injury to theinfant, including any claims by the infant's personal representative,parents, dependents or next of kin that, by substantive law, are derivativeof the medical malpractice claim with respect to the infant's injury,including but not limited to claims of emotional distress proximately relatedto the infant's injury. This subsection shall not be construed to excludeother rights and remedies available to the infant's mother arising out of orrelated to a physical injury, separate and distinct from an injury to theinfant, that is suffered by the infant's mother during the course of theinfant's delivery.
C. Notwithstanding anything to the contrary in this section, a civil actionshall not be foreclosed against a physician or a hospital where there isclear and convincing evidence that such physician or hospital intentionallyor willfully caused or intended to cause a birth-related neurological injury,provided that such suit is filed prior to and in lieu of payment of an awardunder this chapter. Such suit shall be filed before the award of theCommission becomes conclusive and binding as provided for in § 38.2-5011.
D. Notwithstanding anything to the contrary in this section, a civil actionarising out of or related to a birth-related neurological injury under thischapter, brought by an infant, his personal representative, parents,dependents, or next of kin, shall not be foreclosed against anonparticipating physician or hospital, provided that (i) no participatingphysician or hospital shall be made a party to any such action or relatedaction, and (ii) the commencement of any such action, regardless of itsoutcome, shall constitute an election of remedies, to the exclusion of anyclaim under this chapter; provided that if claim is made, accepted andbenefits are provided by the Fund established under this VirginiaBirth-Related Neurological Injury Compensation Program, the Fund shall havethe right, and be subrogated, to all of the common law rights, based onnegligence or malpractice, which the said infant, his personalrepresentative, parents, dependents or next of kin may have or may have hadagainst the non-participating physician or hospital, as the case may be.
§ 38.2-5002. Virginia Birth-Related Neurological Injury Compensation Program;exclusive remedy; exception.
A. There is hereby established the Virginia Birth-Related Neurological InjuryCompensation Program.
B. Except as provided in subsection D, the rights and remedies herein grantedto an infant on account of a birth-related neurological injury shall excludeall other rights and remedies of such infant, his personal representative,parents, dependents or next of kin, at common law or otherwise arising out ofor related to a medical malpractice claim with respect to such injury to theinfant, including any claims by the infant's personal representative,parents, dependents or next of kin that, by substantive law, are derivativeof the medical malpractice claim with respect to the infant's injury,including but not limited to claims of emotional distress proximately relatedto the infant's injury. This subsection shall not be construed to excludeother rights and remedies available to the infant's mother arising out of orrelated to a physical injury, separate and distinct from an injury to theinfant, that is suffered by the infant's mother during the course of theinfant's delivery.
C. Notwithstanding anything to the contrary in this section, a civil actionshall not be foreclosed against a physician or a hospital where there isclear and convincing evidence that such physician or hospital intentionallyor willfully caused or intended to cause a birth-related neurological injury,provided that such suit is filed prior to and in lieu of payment of an awardunder this chapter. Such suit shall be filed before the award of theCommission becomes conclusive and binding as provided for in § 38.2-5011.
D. Notwithstanding anything to the contrary in this section, a civil actionarising out of or related to a birth-related neurological injury under thischapter, brought by an infant, his personal representative, parents,dependents, or next of kin, shall not be foreclosed against anonparticipating physician or hospital, provided that (i) no participatingphysician or hospital shall be made a party to any such action or relatedaction, and (ii) the commencement of any such action, regardless of itsoutcome, shall constitute an election of remedies, to the exclusion of anyclaim under this chapter; provided that if claim is made, accepted andbenefits are provided by the Fund established under this VirginiaBirth-Related Neurological Injury Compensation Program, the Fund shall havethe right, and be subrogated, to all of the common law rights, based onnegligence or malpractice, which the said infant, his personalrepresentative, parents, dependents or next of kin may have or may have hadagainst the non-participating physician or hospital, as the case may be.
§ 38.2-5002. Virginia Birth-Related Neurological Injury Compensation Program;exclusive remedy; exception.
A. There is hereby established the Virginia Birth-Related Neurological InjuryCompensation Program.
B. Except as provided in subsection D, the rights and remedies herein grantedto an infant on account of a birth-related neurological injury shall excludeall other rights and remedies of such infant, his personal representative,parents, dependents or next of kin, at common law or otherwise arising out ofor related to a medical malpractice claim with respect to such injury to theinfant, including any claims by the infant's personal representative,parents, dependents or next of kin that, by substantive law, are derivativeof the medical malpractice claim with respect to the infant's injury,including but not limited to claims of emotional distress proximately relatedto the infant's injury. This subsection shall not be construed to excludeother rights and remedies available to the infant's mother arising out of orrelated to a physical injury, separate and distinct from an injury to theinfant, that is suffered by the infant's mother during the course of theinfant's delivery.
C. Notwithstanding anything to the contrary in this section, a civil actionshall not be foreclosed against a physician or a hospital where there isclear and convincing evidence that such physician or hospital intentionallyor willfully caused or intended to cause a birth-related neurological injury,provided that such suit is filed prior to and in lieu of payment of an awardunder this chapter. Such suit shall be filed before the award of theCommission becomes conclusive and binding as provided for in § 38.2-5011.
D. Notwithstanding anything to the contrary in this section, a civil actionarising out of or related to a birth-related neurological injury under thischapter, brought by an infant, his personal representative, parents,dependents, or next of kin, shall not be foreclosed against anonparticipating physician or hospital, provided that (i) no participatingphysician or hospital shall be made a party to any such action or relatedaction, and (ii) the commencement of any such action, regardless of itsoutcome, shall constitute an election of remedies, to the exclusion of anyclaim under this chapter; provided that if claim is made, accepted andbenefits are provided by the Fund established under this VirginiaBirth-Related Neurological Injury Compensation Program, the Fund shall havethe right, and be subrogated, to all of the common law rights, based onnegligence or malpractice, which the said infant, his personalrepresentative, parents, dependents or next of kin may have or may have hadagainst the non-participating physician or hospital, as the case may be.
