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OCR for page 226
APPENDIX
G
Possible Modifications to the
Virginia Neurological Birth-Related
Injury Compensation Act
1. A provision granting the administering agency continuing juris-
diction for a finite period (perhaps two years from the date of the hear-
ing; in any event, a period not to extend beyond the infant's fourth
birthday) in those cases in which (1) it cannot be determined with a
reasonable degree of medical certainty whether the infant comes within
the definition of a compensable injury at the time of the hearing and (2)
the medical evidence suggests that within the period of the continuance
medical experts will be able to make such a determination.
2. An explicit provision requiring a court to remand for a decision to
the administering agency any case in which there is a substantial
question as to whether an infant comes within the provisions of the
legislation.
3. An explicit provision making the final decision of the administer-
ing agency, and any evidence presented before it, admissible in a subse-
quent court proceeding.
4. A provision subrogating the program to the rights of a claimant for
purposes of enforcing the cIaimant's right to reimbursement or expenses
from any other entity.
5. A provision prohibiting any private entity providing health insur-
ance or health care pursuant to a health maintenance organization
(HMO) or preferred provider arrangement from writing into its policies
an exclusion from coverage for any infant who receives an award under
the legislation.
226
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APPENDIX G 227
6. A provision explicitly requiring liability insurers to pass on to
participating physicians and hospitals any potential savings resulting
from their diminished risk as a result of the legislation.
7. An alternative funding mechanism. Possibilities include a volun-
tary assessment against participating hospitals, residency programs,
and physicians practicing obstetrics (at the same time requiring a dis-
count from liability insurers) and augmentation of this pool with gen-
eral revenue funds from the state or a specific trust fund composed of
public or private names. Any mandatory assessment against all li-
censed physicians should be particularly scrutinized; the program
should not be perceived as a tax on physicians.
S. A notice provision requiring hospitals and physicians to tell their
prospective patients whether they participate in the no-fault program;
this notice should be drafted carefully so as not to disqualify an infant
for a purely technical reason.
Representative terms from entire chapter:
infant comes
