Virginia SB 398: Virginia Birth-Related Neurological Injury Compensation Program and Fund; filing of claims.

Bill Text

2026 SESSION

INTRODUCED

26105392D

SENATE BILL NO. 398

Offered January 14, 2026

Prefiled January 13, 2026

A BILL to amend and reenact §§ 38.2-5002, 38.2-5002.1, 38.2-5004, 38.2-5005, 38.2-5006, 38.2-5007, 38.2-5009, 38.2-5009.1, 38.2-5015, 38.2-5016, 38.2-5017, and 38.2-5020 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 38.2-5002.3, relating to Virginia Birth-Related Neurological Injury Compensation Program and Fund; board of directors; plan of operation; filing of claims; awards and coverage for expenses or services.

—————

Patrons—Perry, McPike and Srinivasan

—————

Referred to Committee on Commerce and Labor

—————

Be it enacted by the General Assembly of Virginia:

1. That §§ 38.2-5002, 38.2-5002.1, 38.2-5004, 38.2-5005, 38.2-5006, 38.2-5007, 38.2-5009, 38.2-5009.1, 38.2-5015, 38.2-5016, 38.2-5017, and 38.2-5020 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 38.2-5002.3 as follows:

§ 38.2-5002. Virginia Birth-Related Neurological Injury Compensation Program; exclusive remedy; exception.

A. There is hereby established the Virginia Birth-Related Neurological Injury Compensation Program.

B. Except as provided in subsection D, the rights and remedies herein granted to an infant on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, or his personal representative, parents, dependents or next of kin, at common law or otherwise arising out of or related to a medical malpractice claim with respect to such injury to the infant, including any claims by the infant's personal representative, parents, dependents or next of kin that, by substantive law, are derivative of the medical malpractice claim with respect to the infant's injury, including but not limited to claims of emotional distress proximately related to the infant's injury. This subsection shall not be construed to exclude other rights and remedies available to the infant's mother arising out of or related to a physical injury, separate and distinct from an injury to the infant, that is suffered by the infant's mother during the course of the infant's delivery.

C. Notwithstanding anything to the contrary in this section, a civil action shall not be foreclosed against a physician or a hospital where there is clear and convincing evidence that such physician or hospital intentionally or willfully caused or intended to cause a birth-related neurological injury, provided that such suit is filed prior to and in lieu of payment of an award under this chapter. Such suit shall be filed before the award of the Commission becomes conclusive and binding as provided for in § 38.2-5011.

D. Notwithstanding anything to the contrary in this section, a civil action arising out of or related to a birth-related neurological injury under this chapter, brought by an infant, or his personal representative, parents, dependents, or next of kin, shall not be foreclosed against a nonparticipating physician or hospital, provided that (i) no participating physician or hospital shall be made a party to any such action or related action, and (ii) the commencement of any such action, regardless of its outcome, shall constitute an election of remedies, to the exclusion of any claim under this chapter; provided that if claim is made and accepted and benefits are provided by the Fund established under this Program, the Fund shall have the right, and be subrogated, to all of the common law rights, based on negligence or malpractice, that the said infant, or his personal representative, parents, dependents, or next of kin may have or may have had against the non-participating physician or hospital, as the case may be.

§ 38.2-5002.1. Representation by Office of Attorney General; applicability of Public Procurement Act, Freedom of Information Act, and Administrative Process Act.

A. The Office of the Attorney General shall provide requested legal services to the Program as provided in this subsection. The Program shall compensate the Office of the Attorney General for its provision of such legal services based on a reasonable hourly rate as shall be agreed upon periodically by the Board and the Attorney General. If the Office of the Attorney General is unable to provide such legal services as the result of a conflict of interest or other disqualifying circumstances, the Board may employ such other counsel as it deems necessary.

B. The board of directors of the Program shall adopt and implement rules consistent with the provisions of the Virginia Public Procurement Act (§ 2.2-4300 et seq.) that specify policies and procedures regarding the contracting for services not related to the health care provided for claimants, which rules shall be based on competitive principles generally applicable to the procurement of services by state agencies. The procedure for adoption of rules by the board of directors of the Prog