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2004 SESSION

042739524
HOUSE BILL NO. 488
Offered January 14, 2004
Prefiled January 13, 2004
A BILL for the relief of Andrew Patrick Kidder.
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Patron-- Tata
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Referred to Committee on Appropriations
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Whereas, on February 28, 1990, Andrew Patrick Kidder (Andrew) was delivered by emergency cesarean section at Virginia Beach General Hospital (VBGH) when Andrew's mother's uterus ruptured during labor; and

Whereas, although a fetal heart monitor was used to follow Andrew's condition during his mother's labor, it was disconnected to permit the cesarean section; and

Whereas, approximately 20 minutes after the fetal heart monitor was disconnected, Andrew was delivered; and

Whereas, after receiving medical care to treat the condition resulting from the traumatic birth, Andrew subsequently was released from the hospital on March 4, 1990; and

Whereas, immediately after his discharge, Andrew's parents remained concerned about his condition; and

Whereas, within a few days of his discharge, Andrew was taken to the office of his pediatrician on two occasions; and

Whereas, on March 10, 1990, Andrew was readmitted to VBGH; and

Whereas, on March 11, 1990, Andrew suffered a stroke caused by thrombosis, which manifested itself following the traumatic events of his birth, and was transferred to the Children's Hospital of the King's Daughters in Norfolk, Virginia, and placed under the care of under Dr. L. Matthew Frank, a pediatric neurologist; and

Whereas, as a result of the stroke Andrew is motorically, cognitively and developmentally disabled; and

Whereas, at no time immediately after Andrew's birth or for more than nine years subsequent were the parents made aware of the existence of the Virginia Birth-Related Neurological Injury Compensation Program (Program) and the possibility of Andrew's eligibility for participation in the Program; and

Whereas, it was not until December 1999 that Sturgis Kidder became aware of the Program's existence when he read a local newspaper article; and

Whereas, on January 7, 2000, Sturgis Kidder filed a petition for benefits under the Program with the Worker's Compensation Commission (Commission) and on January 10, 2000, the Commission issued a Notice of Claim to the Program; and

Whereas, pursuant to subsection A of § 38.2-5008 of the Code of Virginia, a rebuttable presumption shall arise that an injury alleged is a birth-related neurological injury where it has been demonstrated that the claimant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and that the claimant has thereby been rendered permanently motorically and developmentally disabled; and

Whereas, over the course of the review of the claim, Dr. Edward H. Karotkin reviewed the medical records on Andrew's behalf and Drs. Kathryn Kerkering and Lawrence D. Morton reviewed the records on the Program's behalf; and

Whereas, the medical records were also reviewed by a medical panel consisting of Drs. William N.P. Herbert, James E. Ferguson and Elizabeth Mandell pursuant to subsection B of § 38.2-5008; and

Whereas, Dr. Karotkin opined that the thrombosis occurred at birth when Andrew's mother's uterus ruptured, causing asphyxia, but that the effects of the thrombosis were silent during the immediate newborn period; and

Whereas, Drs. Kerkering and Morton and the panel physicians opined that Andrew suffered no injury at birth and that the thrombosis resulted from dehydration, which occurred after Andrew's release from the hospital; and

Whereas, the opinion of these medical experts did not reach a conclusion to a reasonable degree of medical certainty; and

Whereas, following a hearing, the presiding deputy commissioner of the Commission issued an opinion denying Andrew's entry into the Program stating that he was not entitled to the presumption provided by subsection B of § 38.2-5009 and on January 10, 2000, the Commission denied Andrew's entry into the Program; and

Whereas, Andrew subsequently appealed the denial; and

Whereas, on November 27, 2000, a hearing was held on the appeal before a deputy commissioner of the Commission in Virginia Beach; and

Whereas, the opinion of Dr. Katherine Kerkering, a member of the medical panel that reviewed the claim, stated in her written opinion that medical evidence may exist to support Andrew's claim and if so that such evidence should be included in the Commission's review; and

Whereas, despite the existence of such evidence and the statement of Dr. Kerkering, the Commission refused to include it in the review of Andrew's claim; and

Whereas, on February 13, 2001, the deputy commissioner issued a decision denying Andrew's claim; and

Whereas, on March 5, 2001, Andrew appealed the decision to the full Commission; and

Whereas, on March 21, 2001, a hearing was held before the full Commission and on July 26, 2001, the Commission voted 2-1 to deny the claim; and

Whereas, in the intervening time between the date of the hearing and the date that the Commission's decision was rendered, the New England Journal of Medicine published an article containing a study that absolutely supported the position of Dr. Edward H. Karotkin, a medical expert hired by Andrew; and

Whereas, Andrew unsuccessfully attempted to have the new medical evidence added to the record but the Commission refused; and

Whereas, on October 5, 2001, Andrew appealed the decision of the Commission to the Virginia Court of Appeals; and

Whereas, on March 16, 2002, a hearing was held before the Court of Appeals and during oral arguments Andrew attempted to add the article containing the new medical evidence to the record but the Court would not allow the article to be added indicating that the Commission should have included the article in its review of the claim; and

Whereas, on March 26, 2002, the Court of Appeals affirmed the decision of the Commission; and

Whereas, in doing so the Court did not follow precedent established by the Virginia Court of Appeals in the case of Coffey v. the Virginia Birth-Related Neurological Injury Compensation Program, decided on January 29, 2002, which provided that the testimony of medical experts on the condition of claimants for entry on the Program must be established to a reasonable degree of medical certainty to overcome the rebuttable presumption; and

Whereas, on April 24, 2002, Andrew appealed to the Virginia Supreme Court and on October 21, 2002, the Court did not grant certiorari; and

Whereas, despite the existence of clear medical evidence that absolutely supports the opinion of Andrew's medical expert, which was also the only medical opinion that has been offered throughout the Commission's review of the claim that was to a reasonable degree of medical certainty as required by Coffey, Andrew has been prevented from using it in his favor; and

Whereas, Andrew proceeded to file another claim with the Commission on November 12, 2002, and on December 10, 2002, the Program filed a Motion to Dismiss the claim with the Commission; and

Whereas, a hearing was held before the chief deputy commissioner of the Commission on March 28, 2003; and

Whereas, on July 17, 2003, the chief deputy commissioner issued a decision dismissing the claim; and

Whereas, Andrew appealed the dismissal, however, in the process of working through the appeal Sturgis Kidder was told by the chief deputy commissioner that only the Governor and the General Assembly could resolve the claim; and

Whereas, Andrew Kidder has no other means to obtain adequate relief except by this body; now, therefore,

Be it enacted by the General Assembly of Virginia:

1. § 1. That upon the execution of a release by Andrew Patrick Kidder of all claims he may have against the Commonwealth or any agency, instrumentality, officer, employee, or political subdivision in connection with the aforesaid occurrence, the Birth-Related Neurological Injury Compensation Program (Program) is directed to take the following actions: (i) admit Andrew Patrick Kidder as a member of the Program and provide him all benefits that are required under the Program, and (ii) provide reimbursement of expenses incurred by the parents of Andrew Patrick Kidder to care for him since 1990 that would have been covered by the program pursuant to § 38.2-5009 of the Code of Virginia, provided that no expense shall be reimbursed by the Program if it has been reimbursed from another source.