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Doctors fail to win protection of birth fund

doctor-stethoscope-pocket-mainPhysicians sued for a child’s birth injuries failed to bring their case into the Virginia Birth-Related Neurological Injury Fund in a ruling last month from the Court of Appeals of Virginia.

The court’s decision – combined with recent legislation – clarifies that the birth fund is available only for babies whose injuries are triggered during the labor and delivery process.

Created in 1987 as a form of tort protection for obstetric providers, the birth fund pays medical and other expenses of children with severe neurological injuries resulting from the birth process.

The fund is a payer of last resort, meaning that health insurance and other benefits must be exhausted before the fund pays for expenses.

Because the fund is an alternative to tort litigation to compensate children and their families for birth injuries, participating physicians enjoy absolute immunity from civil malpractice liability in eligible cases.

In Hammer v. Senecal (VLW 017-7-051), however, the child was not eligible for the birth fund in part because his injuries stemmed from prematurity, not the birth process. The decision is a victory for the child and his parents, who hope to pursue a medical malpractice claim in Chesapeake Circuit Court.

The child, identified only as “D.S.” in the Court of Appeals opinion, has incurred $900,000 in medical bills to date, with future expenses still to be calculated, his lawyer said.

“He will never stand alone and walk without aids,” said Judith M. Cofield of Virginia Beach, who represents the family.

Expert panel rejects eligibility

The family sued physicians who had provided prenatal care for the child’s mother. Cofield said the doctors should have administered a cervical cerclage to delay the child’s birth.

The doctors, participants in the fund, asserted tort immunity under the birth fund law and requested the case be transferred to the Virginia Workers’ Compensation Commission for a ruling on whether the suit was barred and the child was required to accept compensation from the fund.

The birth fund itself joined the suit, agreeing with the family’s position that the fund was not applicable.

A panel of three independent physicians reviewed the evidence and concluded the child was not eligible because he was not permanently in need of assistance in all activities of daily living.

The child was born at 23 weeks and needed immediate resuscitation. He was bradycardic, flaccid and unresponsive, according to the panel’s findings.

The panel concluded that, while the child suffered neurological injury, the injury was not caused by oxygen deprivation or mechanical injury during labor or delivery. Resuscitation was required because of the child’s prematurity, the panel said.

The child suffered from “mild diparetic cerebral palsy” and tested in a borderline range between normal intelligence and a mild intellectual disability, the panel found.

Based on the panel’s review, and despite contrary opinions from the defendant doctors’ experts, a deputy commissioner determined the case was not eligible for the birth fund. The full commission affirmed. The doctors sought a different result from the Court of Appeals.

Contrary language does not control

The test for a birth-related neurological injury involves four elements, the court explained.

The first requires an injury to the brain or spinal cord caused by deprivation of oxygen or mechanical injury.

The second requires that the injury occur “in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital.”

The third requires permanent injury of specific type.

The fourth element requires that the infant be “permanently in need of assistance in all activities of daily living.”

Proving elements one and three gives rise to a rebuttable presumption of an eligible injury.

The doctors first contended that the birth fund statutes provided an extended time period for an eligible injury. Language added in 1999 expanded the scope of eligible injury to include injuries caused by lack of oxygen during the immediate post-delivery period, the doctors argued.

The Court of Appeals panel rejected the attempt to expand the applicable time period. The 1999 language was not part of the eligibility definition, the court said.

The doctors’ proposed interpretation “would render meaningless the words ‘necessitated by a deprivation of oxygen … that occurred in the course of labor or delivery,’” wrote Judge Mary Grace O’Brien for the unanimous panel.

“We cannot disregard the clear language of the statute,” O’Brien said.

The Feb. 28 Court of Appeals opinion did not mention that the General Assembly approved removing the language at issue from the birth fund statute, effective Jan. 1, 2018. House Bill 2318 emerged from the legislature Feb. 24 without opposition. It awaits enactment by the governor.

“The law now is very, very clear,” Cofield said. She said no other cases remain that are capable of a claim under the disputed language.

Presumption rebutted

The Court of Appeals also concluded that the child and the birth fund successfully rebutted the presumption of eligibility by negating elements two and four.

The appeals court deferred to the commission which credited the testimony of an obstetrician who said the injury did not occur because of oxygen deprivation during labor or delivery but because of the child’s extreme prematurity and immature lungs.

The court also deferred to the commission’s findings that the use of adaptive equipment would not equate to a need for assistance in the activities of daily living.

The court said the medical panel members were not required to consider the statutory presumption when reaching their medical conclusions. The doctors “incorrectly assign a duty to the panel to make a legal determination that is properly reserved to the Commission,” the court said.

The doctors are represented by Jason R. Davis and Mary Elizabeth Sherwin of Norfolk. Davis did not respond to a request for comment.

The birth fund was represented by senior assistant attorney general Carla R. Collins.

The physician defendants have until March 30 to request review by the Supreme Court of Virginia.

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