By Alex Stein
Virginia’s Birth–Related Neurological Injury Compensation Act of 1987 (BRNICA) affords aggrieved patients a no-fault compensation remedy for qualified injuries while giving potential tort defendants – doctors and hospitals who choose to participate in the Birth–Related Neurological Injury Compensation Fund – an absolute immunity from malpractice liability. Va. Code Ann. § 38.2-5002. For a parallel Florida statute, see Fla. Stat. § 766.302. Participation in this program is optional for both patients and care providers. The program compensates injured children for disability damages not covered by the government, health benefit plans, and private insurance. Pain, suffering, and other noneconomic damages are noncompensable (in Florida, they are capped at a low amount). By electing to receive treatment from a participating provider, the patient commits herself and her future child to pursue any compensation claim for birth-related neurological injury before a special administrative tribunal and automatically waives the right to bring a medical malpractice lawsuit against the participating physician or hospital. Wolfe v. Va. Birth–Related Neurological Injury Comp. Program, 580 S.E.2d 467, 476 (Va. 2003).
Because injury claims adjudicated by the tribunal do not depend upon medical malpractice, the tribunal’s decisions need not be reported to the National Practitioner Data Bank pursuant to the Health Care Quality Improvement Act of 1986. This Act, 42 U.S.C. § 11131, only requires reporting of payments “under a policy of insurance, self-insurance, or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim.”
The scope of BRNICA’s coverage is consequently of paramount importance for patients, doctors, and hospitals. Virginia’s appellate court’s decision in Women’s Healthcare Associates, Inc. v. Mucci clarifies this scope. Read More