Virginia Birth Injury Claims & Medical Negligence

Find out how to receive compensation when your child is injured during labor and delivery

If your child is injured during labor and delivery, you may be able to receive compensation by filing a medical malpractice lawsuit or a petition with the Virginia Birth-Related Neurological Injury Compensation Program.

More than 100,000 babies are born in Virginia every year. The role of healthcare workers during labor and delivery is to ensure the health and safety of both the mother and the child.

Unfortunately, healthcare workers can make mistakes, and sometimes these mistakes have long-lasting consequences.

In this article, we'll take a look at birth injuries in the Mother of States, including Virginia's unique program that allows for compensation in certain cases without proving fault.

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What is a birth injury?

A birth injury is an injury that is suffered by the mother or newborn child during the process of labor and delivery. Birth injuries are different from birth defects, which result from a problem that occurs when the baby is developing in the womb.

For the child, birth injuries can include:

  • Cerebral palsy
  • Brain hemorrhage
  • Bruising of the head
  • Nerve injuries
  • Fractures of the clavicle or collarbone
  • Respiratory problems
  • Shoulder dystocia

For the mother, birth injuries can include:

  • Vaginal tears
  • Postpartum hemorrhage
  • Ruptured uterus
  • Post-traumatic stress disorder

Birth injury risk factors

Though birth injuries can occur during any labor and delivery, there are certain factors that make a birth injury more likely:

  • Lack of supervision of pregnancy
  • Maternal medical conditions
  • Difficult labor
  • Short or prolonged labor
  • Higher birth weight
  • Use of forceps or vacuum
  • Maternal age less than 16 years or greater than 35 years
  • Breech delivery
  • Maternal obesity
  • Premature birth

When is a healthcare professional liable for a birth injury in Virginia?

Birth injuries are not always the result of some inappropriate action on the part of the healthcare professional. Some birth injuries are unavoidable, while others are necessary to avoid more serious injuries.

To recover damages for a birth injury, you need to establish the following elements:

  • Your healthcare provider failed to exercise the degree of care and skill expected of a reasonably prudent healthcare provider in the same specialty, and
  • The failure was the proximate cause of your infant's injury.
Enjuris tip: In almost all birth injury cases, expert testimony is necessary to help the jury determine whether or not a healthcare provider acted reasonably in a particular situation. In rare cases, the alleged negligent act is so clearly egregious that expert testimony is unnecessary.

What damages are available in a Virginia birth injury case?

Plaintiffs in most Virginia birth-related injury cases can recover the following types of damages:

  • Economic damages represent the monetary losses associated with your injury (medical expenses, lost wages, etc.).
  • Non-economic damages represent the non-monetary losses associated with your injury (pain and suffering, emotional distress, loss of enjoyment of life).
  • Punitive damages are intended to punish the defendant and deter future similar conduct. Punitive damages are only available in cases where the defendant's conduct was willful, wanton, or reckless.

Like most states, Virginia caps the amount of damages a plaintiff can recover in a birth-related medical malpractice case.

Under Virginia law, birth-related medical malpractice damages are capped at $2.4 million for injuries that occur between July 1, 2019, and June 30, 2020. The cap increases by approximately $50,000 each year.

Enjuris tip: You can find a complete list of damage caps by date in Virginia Code § 8.01-581.15.

What is the Virginia Birth-Related Neurological Injury Compensation Program?

If your child suffered a birth injury, filing a medical malpractice lawsuit may not be your only option to recover damages.

In 1987, Virginia created the Virginia Birth-Related Neurological Injury Compensation Program. The purpose of the program is to provide plaintiffs with an alternative to filing a medical malpractice lawsuit.

To receive compensation under the program, 2 things must be true:

  1. Your child must be delivered by a participating doctor or at a participating hospital, and
  2. Your child's injuries must qualify.

All providers are required by law to inform obstetrical patients whether or not they participate in the program. You can also contact the Virginia Birth-Related Neurological Injury Compensation Program for a list of current participants.

For an injury to be considered a qualifying injury, it must meet the following criteria:

  • The injury involves the brain or spinal cord
  • The injury was caused by deprivation of oxygen or mechanical injury occurring in the course of labor, delivery, or resuscitation
  • The injury renders your child permanently motorically disabled and (i) developmentally disabled or (ii) cognitively disabled
  • Your child's disability requires assistance in all activities of daily living

The major difference between filing a medical malpractice lawsuit and applying to the Virginia Birth-Related Neurological Injury Compensation Program is that the program is a no-fault system of compensation, meaning decisions to compensate a plaintiff are not based on a finding of negligence.

How do I file a birth injury claim?

Filing a birth-related medical malpractice lawsuit is similar to filing any other type of personal injury lawsuit. To start the lawsuit, you must file and serve the defendant with a summons and complaint.

However, in most cases, you must obtain a written opinion from a medical expert prior to filing and serving the summons and complaint. The written opinion must state that the expert has reviewed the facts of your case and determined that the healthcare professional deviated from the applicable standard of care and the deviation caused your child's injuries.

How do I file a claim with the Virginia Birth-Related Neurological Injury Compensation Program?

To file a claim with the Virginia Birth-Related Neurological Injury Compensation Program, you need to fill out a petition (Form BR1).

Once the petition is completed, you must mail it to the Virginia Workers' Compensation Commission (WCC), along with a $15 filing fee, at the following address:

The Virginia Workers' Compensation Commission
333 E. Franklin St. Richmond, Virginia 23219

If you have any problems completing or filing the petition, you can contact the WCC at 804-367-8664.

How long do I have to file a birth injury lawsuit?

Every state has a statute of limitations that limits the amount of time you have to file a lawsuit. The reasoning behind the statute of limitations is that defendants shouldn't be subjected to the threat of a lawsuit indefinitely. What's more, the statute of limitations encourages plaintiffs to file a lawsuit while the evidence is still fresh.

Virginia's statute of limitations for birth-related medical malpractice claims is 2 years. However, if the injury is suffered by the child (as is usually the case), the statute of limitations is extended until the child turns 10 years old.

What is the statute of limitations for filing a claim with the Virginia Birth-Related Neurological Injury Compensation Program?

There is a 10-year statute of limitations for filing a claim with the Virginia Birth-Related Neurological Injury Compensation Program.

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