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1999 SESSION

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SB 1018 Birth-Related Neurological Injury Compensation Act.

Introduced by: Madison E. Marye | all patrons    ...    notes | add to my profiles

SUMMARY AS PASSED: (all summaries)

Virginia Birth-Related Neurological Injury Compensation Act. Makes the definition of “birth-related neurological injury” as presently in effect retroactive in application to any child born on and after January 1, 1988, the date for the accruing of claims under the act. The definition included in the original statute was stringent and could not be met by some infants who were neurologically injured in a hospital at birth or immediately thereafter. The 1988 definition required an infant suffering a birth-related neurological injury to be rendered permanently nonambulatory, aphasic, incontinent, and in need of assistance in all “phases” of daily living. In 1990, two bills were passed to revise the definition of “birth-related neurological injury” by striking the requirements to be permanently nonambulatory, aphasic, and incontinent and inserting requirements for permanent motor disabilities and developmental disabilities or cognitive disability. The infant must require permanent assistance in all “activities” of daily living. This bill authorizes the legal representative of a child born between January 1, 1988, and July 1, 1990, to file an application for review by July 1, 2000, upon meeting the conditions that (i) a claim was timely filed for the child and was dismissed on the basis of a determination that although the child’s injuries were caused by deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital, the injuries did not meet the earlier definition of nonambulatory, aphasic, incontinent, and in need of assistance in all phases of daily living and (ii) the medical panel’s report provided pursuant to the dismissed claim stated that the child’s injuries would meet the present definition, i.e., permanently motor disabled and developmentally disabled or cognitively disabled and permanently in need of assistance in all activities of daily living. The application for review may be filed regardless of whether or not the legal representative has previously obtained a review of the dismissed claim by the Commission. Such review can only be filed for live births and cannot be filed for claims dismissed as caused by genetic or congenital abnormalities, degenerative neurological diseases, or maternal substance abuse. The full Commission will review the evidence and make a determination on the petition as though the definition in effect on July 1, 1990, had been in effect on the date of the child’s birth and no previous review or dismissal had occurred. The statute of limitations on filing of claims is modified to allow for applications for review in these narrow circumstances to be filed by July 1, 2000, for any infant whose birth occurred more than ten years prior to the application, if the dismissed claim upon which the application is filed was filed before the infant’s tenth birthday. This retroactive provision could result in two or more dismissed claims being reconsidered.


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