Medical Society of Virginia

Virginia Birth Injury Fund (BIF) FAQs


How did the BIF get started?
In the mid-1980’s Virginia experienced a malpractice crisis during which medical malpractice insurance rates soared and insurance companies were faced with eliminating coverage to obstetricians. Up to one-quarter of Virginia’s obstetricians confronted the possibility of having to close their offices.

To address this situation, in 1987 the General Assembly worked with physicians, associations, insurers, lawyers and others to develop a solution that would ensure access to obstetric care for Virginians – the Virginia Birth- Related Neurological Injury Compensation Program, the first of its kind nationwide.

The program was designed as a no-fault system to ensure lifetime care to eligible participants and stabilize the malpractice environment in Virginia, both of which it has accomplished.

Who runs the program?
The Birth Injury Fund is governed by a seven-member board of directors, who will expand to nine members on July 1, 2008. The Governor of Virginia appoints all board members. The Web site for the fund is www.vabirthinjury.com.

What does the program provide?
The program covers medically-necessary expenses beyond what private insurance, Medicare, or Medicaid will cover for approved participants in the fund who have suffered specific birth injuries during the labor and delivery process. Covered expenses include: medical expenses, hospital expenses, in-home care, rehabilitation services and therapies, compensation for lost earnings (ages 18 to 65), special equipment or facilities, home modifications, medically necessary travel and more.

What are the eligibility requirements and who decides if a child can enter the program?
Admission into the program is determined solely by the Virginia Workers’ Compensation Commission based on criteria outlined in state law. Requirements to participate in the program include:
  • The child must be delivered by a participating provider or at a participating hospital.
  • The Code of Virginia defines a qualifying birth injury as: ‘Birth-related neurological injury’ means injury to the brain or spinal cord of an infant caused by the deprivation of oxygen or mechanical injury occurring 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 which renders the infant permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled.”
How is the program funded?
There are two primary funding sources and one contingent source. Prior to July 1, 2008, physicians who deliver babies and participate in the Fund pay a fee of $5,300. Hospitals that elect to participate in the Fund pay $50.00 per live birth. (Hospitals with large volumes of deliveries have a cap that limits payments to $190,000 annually.) After July 1, 2008, both sets of fees will increase by $100 and $10,000 respectively. Fees for participating physicians will incrementally rise to $6,200 by 2012. Based on prior legislation, all other physicians who hold a license to practice medicine in Virginia currently pay an annual fee of $290.00, which will increase on July 1, 2008 to $300.00.

The Bureau of Insurance at the State Corporation Commission conducts an annual actuarial analysis of the Fund. If the actuaries determine the fund is not actuarially sound, then the contingent funding mechanism is triggered. Contingent funding is provided by all property and casualty insurance carriers who write policies in Virginia (home, auto, professional liability etc). These carriers pay one-quarter of one percent of all premiums written in Virginia into the Fund and recover such amounts from those who purchase the insurance. In recent years, the fund has been determined to be actuarially unsound and, as such, the contingent funding mechanism has been providing approximately 57 percent of the total monies to the Fund annually.

Why do some physicians pay more than others?
Physicians who deliver babies pay more to participate in BIF under the premise that they benefit the most from the liability protections of the program. Absent gross negligence, a physician who participates in BIF cannot be sued for a birth injury.

Would the elimination of BIF put the medical malpractice cap at risk?
Yes. If the BIF were to cease or stop accepting claimants, a constitutional challenge to the cap could be more difficult to defend. The main challenge to the cap on Constitutional grounds is that the cap violates the equal protection or due process clauses. In the past, when the constitutionality of the cap has been challenged, the Virginia Supreme Court has referred to the BIF as an example of how the legislature acted reasonably in response to an issue effecting health, welfare or safety, thereby protecting citizen’s rights to equal protection or due process. Without the BIF, severe cases will be thrust back into the tort system, making it harder to prove that equal protection or due process has been preserved by action of the General Assembly.

Also of note, a 2002 study conducted by the General Assembly’s Joint Legislative and Review Commission (JLARC) notes: “In addition to serving more birth-injured children than the tort system, the program provides benefits that exceed the medical malpractice cap for the typical child.”

How does the BIF affect malpractice premiums statewide?
The answer varies among professional liability insurance carriers. By statute, all carriers must provide a credit to providers who participate in BIF, the amount of which is not specified. Premium credits are often lumped together with credits for no prior claims, years of practice and completion of risk management programs. Recent surveys have determined that some physicians receive dollar for dollar credits for participating in BIF, while other carriers provide credits less than the amount paid by physicians to BIF.

Does participation in the program replace malpractice insurance?
No. Participation in the program does not replace your malpractice insurance.

How many obstetricians participate in the BIF?
A growing number of obstetricians in Virginia participate in BIF. Current estimates indicate that approximately 75 percent participate in the program.

What happens if I am an obstetrician who does not participate in BIF and I deliver a child with a birth injury?
An obstetrician who is not a participant in BIF would be subject to being sued in court for medical malpractice in this instance.

What happens if the delivering hospital participates in BIF and the delivering obstetrician does not?
The plaintiff may make an election of remedies, meaning the plaintiff can elect to file a lawsuit against the obstetrician or pursue a BIF claim given the participation of the hospital, but may not pursue both. The recommended course is for both the hospital and the obstetrician to participate in BIF in order to minimize the risk of lawsuits.

Additional questions?
Contact MSV’s government affairs department at govtaffairs@msv.org.