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No birth-fund fees for med-mal lawyers

Doctors who seek to avoid med-mal liability by petitioning to get a case before Virginia’s birth-injury compensation program can’t collect legal fees from the program.

In a Nov. 22 decision in In re: Subham Patel, the Virginia Workers’ Compensation Commission reversed fee awards to lawyers for a physician and her practice group, and lawyers for Bon Secours St. Mary’s Hospital in Richmond and three nurses.

Bhavisha and Girish Patel initially sued in Henrico County Circuit Court for medical malpractice and wrongful death related to their baby, Subham, who died two days after his Feb. 9, 2008, birth.

Over the parents’ objection, the health care providers petitioned to have the case submitted to the commission, which administers the Virginia Birth-Related Neurological Injury Compensation Program. A panel of review physicians recommended admission of the case into the program. A deputy commissioner awarded $100,000 under Va. Code § 38.2-5009.1 to the parents for their sorrow and mental anguish, and remanded the mother’s personal injury claim to the circuit court.

A later order from the deputy commissioner awarded attorney’s fees and costs of $29,913 to lawyers for the Patel family, $28,722 to lawyers for St. Mary’s Hospital and three nurses; and $30,428 to lawyers for Dr. Shannon Weatherford and her practice group.

After the birth-injury fund challenged the award, the lawyers for the health care providers said the statutory language did not limit an award of attorney’s fees based on the identity of the party petitioning for admission of the case to the program.

But the commission reviewed Code § 38.2-5009(A)(3), which it said was ambiguous, and decided a health care provider may not be a claimant under Code § 38.2-5001.

“A healthcare provider cannot represent the interests of an infant, which often are in conflict. Since a healthcare provider cannot file a claim on behalf of an infant, it cannot recover expenses ‘in connection with the filing of a claim,’” wrote Commissioner Virginia R. Diamond.

“The action taken by a healthcare provider to avoid malpractice liability is not equivalent to the filing of a claim on behalf of an infant,” and the purpose of the act – to compensate families – is not supported by awarding attorney’s fees to lawyers for hospitals and doctors, Diamond wrote.

The commission reversed the fee award to the lawyers for the health care providers, and allowed copying costs only. The commission upheld the fee award to the lawyers for the infant’s family.

By Deborah Elkins

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