By Bill McKelway
Times-Dispatch Staff Writer
Tuesday, October 3, 2006

This story can be found at: http://www.timesdispatch.com/servlet/Satellite?pagename=RTD/MGArticle/RTD_BasicArticle&c=MGArticle&cid=1149190944333

Eligible families not notified

- Birth-injury program not required to contact potential claimants -

Families who could receive lifetime medical benefits for their severely injured children thanks to landmark legislation signed five months ago by Gov. Timothy M. Kaine may never learn they are eligible to apply.

The legislation includes no notification provision and the key state agency responsible for approving birth-injury benefits which can reach into the millions of dollars per child -- is refusing to notify potential claimants.

The Virginia Birth-related Neurological Injury Compensation Program also will not release records that show that as many as 17 families may qualify for help.

Birth-injury board members learned that number last month from the program's executive director but disavowed responsibility to notify families.

"There's nothing in the law that says we are responsible for that," said board Chairman Melina Dee Perdue, a hospital executive in Roanoke. Other board members backed her up.

"That's just not what the program is supposed to be all about," said state Sen. John S. Edwards, D-Roanoke, a former birth-injury board member and sponsor of the legislation. "The program is designed to reach out to these families who need help. The bill doesn't include a notification provision, but what's the problem in finding these families and telling them that a benefit might be available?"

Each child admitted into the birth-injury program represents potential medical costs and other benefits of about $2 million, according to financial studies of the 18-year-old program. The program is facing a $132 million cash shortage, money that analysts say it should have in hand to meet future obligations of program children.

The program was created to protect doctors and hospitals from malpractice suits involving the births of children who suffer lifelong physical and mental injuries from oxygen loss or spinal damage.

Children who meet eligibility criteria are barred in most cases from filing medical malpractice suits; instead, they receive lifetime medical care from the program.

Edwards' bill allows another opportunity to apply for families that have previously been denied entry into the program. Children must have been born between June 1, 1988, and July 1, 1993. The offer expires in July next year.

While it has helped lessen increases in malpractice premiums, the program has been criticized for allowing debts to pile up while fees paid by the medical community lapsed; studies also criticized the program for failing to aggressively seek out children who might qualify for care.

It took three years before the first child was admitted and a 1998 study found that "information about the program is neither readily nor routinely made available to the parents."

In the late 1990s, the program advertised its services and petitions increased from an average of seven over the previous 11 years to 25 in 2000 alone; the program then canceled the advertising effort. About 110 children have been accepted into the program in 18 years.

In a 2002 study of the program, the Joint Legislative Audit and Review Commission urged mandatory participation by doctors and hospitals to increase access; the program opposed the effort. In only one case has an insurance company notified the program of a possible claimant, a provision of state law.

In an e-mail, the birth-injury board's executive director, George Deebo, wrote that there is no notification requirement in the law.

And he added that "the program is prohibited from providing legal advice" to families that the program may later have to oppose in eligibility hearings.

But Edwards said yesterday that providing notice of eligibility to apply for benefits hardly constitutes legal advice.

Records obtained by The Times-Dispatch indicate that few of the 17 families meet the terms of Edwards' bill; perhaps no more than 10 would be able to reapply for program care.

Several families withdrew their petitions before they were formally acted on; others did not meet eligibility criteria because their doctor or hospital did not participate in the program.

Others such as Sturgis Kidder, a Virginia Beach resident who has sought changes in the program for years, said his son will benefit from Edwards' bill, but he has not received formal notice that his son can apply. Kidder, though, followed the progress of Edwards' bill through every committee meeting at the General Assembly and is preparing to refile an application.

"I thought the program was here to benefit the injured children. It is hard to believe they would not take whatever steps they could to find the children who meet the requirements of the bill," he said.

Contact staff writer Bill McKelway at bmckelway@timesdispatch.com or (804) 649-6601.