Virginia Brain Damage Lawyers

Virginia And Florida Child Brain Injury Compensation Funds

In response to increasing costs of medical malpractice insurance and insurers withdrawing from the market in the late 1980s, Virginia and Florida both created funds to compensate families for the lifetime medical expenses they incur when their child is born severely impaired because of neurological injuries suffered during the birthing process. Infants were singled out because lawsuits associated with these cases have a relatively high success rate and successful cases tend to result in large monetary awards. The fund and claims process is an alternative to malpractice litigation. If a family is eligible for coverage, it cannot pursue a malpractice claim; if it is found ineligible for coverage, it can then litigate.

In both states the fund is capitalized by annual assessments from physicians and hospitals. In both, physicians who participate in the program pay $ 5,000 per year and hospitals pay $ 50 per live birth. Participation in both states is voluntary. Doctors and hospitals that participate do not have to face malpractice suits if an infant is found eligible for compensation. All other physicians in the states pay $ 250. Virginia also assesses liability insurers. Florida initially capitalized the fund with a $ 20 million state appropriation.

If eligible, a family receives payment for all necessary and reasonable expenses for medical, hospital, rehabilitative, residential, and custodial care and services; special equipment or facilities; and related travel, except those expenses that have already been paid by a private insurance policy or a government program. The family is also compensated for the cost of filing the claim, including attorney’s fees. In Virginia, it is compensated for the child’s lost earnings, while in Florida parents receive an award of up to $ 100,000.

In Virginia, the Workers’ Compensation Commission determines whether a child is eligible; in Florida it is an administrative law judge from the State Management Department.

The funds must maintain actuarial soundness over a long period. Virginia’s fund is sound for the next 25 years but may face problems after that according to a 2002 study by the Joint Legislative Audit and Review Commission. That study determined that the program overall was beneficial for ob/gyns and hospitals and that eligible children fared better than they would have under the tort system with a malpractice award cap.

Florida’s fund has more assets than liabilities at this time. Its law also contains a mechanism for tapping an insurance trust fund, assessing insurers, or closing claims applications if the fund becomes unsound.

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