1 See, for example, the debate over defensive medicine described in Office of Technology Assessment, U.S. Congress, Defensive Medicine and Medical Malpractice 1-3 (1994).

2 Daniel P. Kessler, The Effect of the U.S. Malpractice System: A Review of the Medical Literature 2 (2007) (Unpublished manuscript, available at http://www.pointoflaw.com/pdfs/kessler-malpractice-jced1.pdf).

3 Localio, A. Russell et al., Relation Between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III, 325 New Eng. J. Med. 245, 247-49 (1991)CrossRefGoogle ScholarPubMed; Studdert, David M. et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024, 2025, 2028 (2006)CrossRefGoogle ScholarPubMed; Studdert, David M. et al., Negligent Care and Malpractice Claiming Behavior in Utah and Colorado, 38 Med. Care 250, 256 (2000)CrossRefGoogle ScholarPubMed.

4 Studdert, David M. et al., Are Damages Caps Regressive? A Study of Malpractice Jury Verdicts in California, 23 Health Affairs 54, 55-56 (2004)CrossRefGoogle ScholarPubMed.

5 See Mello, Michelle M. & Brennan, Troyen A., Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 Tex. L. Rev. 1595, 1628 (2002)Google Scholar (suggesting that a malpractice system based on findings of negligence cannot function effectively as a quality improvement system). See generally Inst. of Med., To Err is Human: Building a Safer Health System (Linda T. Kohn et al. eds., 2000) (describing the extent of safety problems in medical care).

6 Bassett, Ken L. et al., Defensive Medicine During Hospital Obstetrical Care: A Byproduct of the Technological Age, 51 Soc. Sci. & Med. 523, 523-24 (2000)CrossRefGoogle ScholarPubMed; Kessler, Daniel P. & McClellan, Mark B., How Liability Law Affects Medical Productivity, 21 J. Health Econ. 931, 934 (2002)CrossRefGoogle ScholarPubMed; Kessler, Daniel & McClellan, Mark, Do Doctors Practice Defensive Medicine?, 111 Q. J. Econ. 353, 353-54 (1996)CrossRefGoogle Scholar; Studdert, David M. et al., Defensive Medicine Among High- Risk Specialist Physicians in a Volatile Malpractice Environment, 293 JAMA 2609, 2609-10 (2005)CrossRefGoogle Scholar.

7 Mello, Michelle M. et al., Effects of a Malpractice Crisis on Specialist Supply and Access to Care, 242 Annals Surgery 621, 626 (2005)CrossRefGoogle ScholarPubMed.

8 The term “crisis” has been widely used to refer to repeated, unusually large increases in professional liability insurance premiums and shrinking options for coverage in many markets across the country. See, e.g., Mello, Michelle M. et al., The New Medical Malpractice Crisis, 348 New Eng. J. Med. 2281, 2281 (2003)CrossRefGoogle ScholarPubMed.

9 See Sloan, Frank A. et al., Effects of Tort Reforms on the Value of Closed Medical Malpractice Claims: A Microanalysis, 14 J. Health Pol. Pol’y & L. 663, 664 (1989)CrossRefGoogle ScholarPubMed (outlining a number of reform strategies, such as placing barriers and alternatives to suits, limiting claims and increasing the cost of litigation). For a more detailed categorization and exposition of suggested reforms, see Studdert, David M. et al., Medical Malpractice, 350 New Eng. J. Med. 283, 287-288 (2004)CrossRefGoogle ScholarPubMed.

10 See, e.g., Fraser, John J. Jr. & the Committee on Medical Liability, Technical Report: Alternative Dispute Resolution in Medical Malpractice, 107 Pediatrics 602, 603-605 (2001)CrossRefGoogle ScholarPubMed; Rolph, Elizabeth et al., Arbitration Agreements in Health Care: Myths and Reality, 60 Law & Contemp. Probs. 153, 153-154 (Spring 1997)CrossRefGoogle Scholar.

11 See, e.g., Bovjberg, Randall R., Beyond Tort Reform: Fixing Real Problems, 3 Ind. Health L. Rev. 3, 24-25 (2006)Google Scholar. Administrative compensation proposals have also been called “no-fault” proposals. See generally Horowitz, Jill and Brennan, Troyen A., No-Fault Compensation for Medical Injury: A Case Study, 14 Health Affairs 165 (1995)Google Scholar. This term is somewhat inapt, however, in that most such proposals do not contemplate compensation on the basis of strict liability. For that reason, we do not use the term here.

12 See, e.g., Bovbjerg, Randall R. & Sloan, Frank A., No-Fault for Medical Injury: Theory and Evidence, 67 U. Cin. L. Rev. 53, 120 (1998)Google Scholar (arguing that a no-fault system is preferable so long as the primary purpose of the legal system is taken to be compensating injured parties); Mello, Michelle M. et al., “Health Courts” and Accountability for Patient Safety, 84 Milbank Q. 459, 468-71 (2006)CrossRefGoogle ScholarPubMed (cataloging the advantages of an administrative compensation system over the traditional tort system); Studdert, David M. et al., Can the United States Afford a “No-Fault” System of Compensation for Medical Injury?, 60 Law & Contemp. Probs. 1, 31-34 (1997)CrossRefGoogle Scholar (arguing that affordable no-fault models are available that would compensate a larger proportion of medically injured patients); Weiler, Paul C., The Case for No-Fault Medical Liability, 52 Md. L. Rev. 908, 910 (1993)Google Scholar (arguing that administrative compensation systems avoids the disruptive effects of litigation).

13 Mello et al., supra note 12, at 460-68; Common Good, Windows of Opportunity: State-Based Ideas for Improving Medical Injury Compensation and Enhancing Patient Safety (2006), available at http://cgood.org/assets/attachments/Windows_of_opportunity_web.pdf.

14 On the difficulties in demarcating the boundaries of reasonable medical practice, see Inst. of Med., supra note 5, at 132-55. See also U.S. Dep't Health & Human Serv., Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs By Fixing Our Medical Liability System 4-7 (2002), available at http://aspe.hhs.gov/daltcp/reports/litrefm.pdf (discussing the impact of malpractice litigation on health care quality and patient safety).

15 Mello et al., supra note 12, at 474.

16 We count ourselves among these proponents. See Mello et al., supra note 12; Studdert, David M. & Brennan, Troyen A., Toward A Workable Model of “No-Fault” Compensation for Medical Injury in the United States, 27 Am. J. L. & Med. 225 (2001)Google Scholar.

17 In the House of Representatives, Representative Mac Thornberry (R-TX) introduced legislation to test new model health care tribunals at the state level. Medical Liability Procedural Reform Act of 2005, H.R. 1546, 109th Cong. (2005). In the Senate, Senators Max Baucus (D-MT) and Michael Enzi (R-WY) introduced a bill to facilitate state level experimentation with several alternatives to current medical malpractice litigation. Fair and Reliable Medical Justice Act, S. 1337, 109th Cong. (2005).

18 Mello et al, supra note 12, at 460-68; Common Good, supra note 13, at 1.

19 As described by a legal adviser of the Swedish Patient Insurance Association, “[t]he standard of care used in this assessment is that of an experienced specialist or other experienced professional in the field concerned. The treating physician's actual qualifications, expertise and experience, thus do not enter into this assessment. The specialist standard applies even where no experienced specialist was present during the treatment. If a nerve injury occurs in a hip operation, for example, the standard used is how an experienced orthopedist would have acted.” Carl Espersson, Commentary, The Patient Injury Act – A Comment, available at http://www.pff.se/upload/pat_eng_A2.pdf. See also Kachalia, Allen B. et al., Beyond Negligence: Avoidability and Medical Injury Compensation, 66 Soc. Sci. & Med. 387, 388 (2008)CrossRefGoogle ScholarPubMed.

20 See, e.g., Kachalia et al., supra note 19, at 400; Mello et al., supra note 12, at 466, 472-74, 487.

21 See also Jorstad, R.G., The Norwegian System of Compensation to Patients, 21 Med. Law 681, 681-83 (2002)Google ScholarPubMed; Kachalia et al., supra note 19, at 388-91; Studdert, David M. & Brennan, Troyen A., No-Fault Compensation for Medical Injuries: The Prospect for Error Prevention, 286 JAMA 217, 219-20 (2001)CrossRefGoogle ScholarPubMed. For detailed expositions of these programs, see generally Common Good, Administrative Approaches to Compensating for Medical Injuries: National and International Perspectives (Oct. 31, 2005) (transcript available at http://commongood.org/assets/attachments/Transcript_--_October_31st_Event.pdf).

22 See Bismark, Marie & Paterson, Ron, UpDate: International Report: No-Fault Compensation in New Zealand: Harmonizing Injury Compensation, Provider Accountability, and Patient Safety, 25 Health Aff. 278, 281 (2006)CrossRefGoogle Scholar (discussing New Zealand's public health and welfare systems); Studdert & Brennan, supra note 21, at 219 (mentioning differences between taxation and health care systems in the United States and Sweden, Finland, Denmark, and New Zealand).

23 Bob Hagedorn, Speakout: New Zealand's Approach Points the Way on Medical Liability, Rocky Mountain News, Mar. 22, 2008, http://www.rockymountainnews.com/news/2008/mar/22/speakout-new-zealands-approachpoints-the-way-on/.

24 Odato, James M. & Crowley, Cathleen, Doctors Rally for a Remedy, Times-Union (Albany), Mar. 5, 2008, at A3Google Scholar.

25 S.B. 730, 425th Gen. Assem., Reg. Sess. (Md. 2008); H.B. 1124, 425th Gen. Assem., Reg. Sess. (Md. 2008).

26 South Carolina Study Committee on Medical Malpractice and Liability Limits, Medical Malpractice and Liability Limits Study Committee Report, S. 1469, 117th Sess. (2008) (reviewing the views of various stakeholders and concluding that the stakeholders should meet to determine the design of a birth injury program for the state).

27 Studdert & Brennan, supra note 16, at 229.

28 Other criticisms have included concerns relating to the potential cost impacts of broadening eligibility for medical injury compensation, possible adverse effects on deterrence, constitutional problems, and fairness to patients. See, e.g., Kessler, supra note 2, at 19-23. See generally Maxwell J. Mehlman & Dale A Nance, Medical Injustice: The Case Against Health Courts (2007).

29 See Kessler, supra note 2, at 18; Peters, Phillip G. Jr., Health Courts?, 88 B.U. L. Rev. 227, 238-39, 243-44 (2008)Google Scholar.

30 See The Florida Birth-Related Neurological Injury Compensation Association, http://www.nica.com (last visited Nov. 11, 2008); Virginia Birth-Related Neurological Injury Compensation Program, http://www.vabirthinjury.com (last visited Nov. 11, 2008).

31 See, e.g., Mello et al., supra note 12, at 467-69; Tancredi, Lawrence R. & Bovbjerg, Randall R., Rethinking Responsibility For Patient Injury: Accelerated-Compensation Events, a Malpractice and Quality Reform Ripe For a Test, 54 Law & Contemp. Probs. 147, 148 (1991)CrossRefGoogle ScholarPubMed. See generally American College of Physicians, Beyond MICRA: New Ideas For Liability Reform, 122 Annals of Internal Med. 466 (1995)CrossRefGoogle Scholar.

32 See, e.g., MacLennan, Alastair et al., Who Will Deliver Our Grandchildren? Implications of Cerebral Palsy Litigation, 294 JAMA 1688, 1688-89 (2005)CrossRefGoogle ScholarPubMed.

33 See Tancredi, supra note 31, at 154-55.

34 Frank A. Sloan et al., Suing for Malpractice 8-9 (1993).

35 Despite their shared heritage, there are some important differences in the structure of the two programs, and they have diverged in other ways over time. This paper addresses differences that are relevant to understanding the operation of the programs’ compensation criteria; more general and detailed accounts of the programs’ respective features are available elsewhere. See, e.g., Bovbjerg, Randall R. et al., Administrative Performance of “No-Fault” Compensation for Medical Injury, 60 Law & Contemp. Probs. 71, 71 (Spring 1997)CrossRefGoogle Scholar; Sloan, supra note 9, at 681. See generally Epstein, Richard A., Market and Regulatory Approaches to Medical Malpractice: The Virginia Obstetrical No-Fault Statute, 74 Va. L. Rev. 1451 (1988)CrossRefGoogle Scholar; O’Connell, Jeffrey, Pragmatic Constraints on Market Approaches: A Response to Professor Epstein, 74 Va. L. Rev. 1475 (1988)CrossRefGoogle Scholar; Morris, Sandra J., Note, Will Tort Reform Combat the Medical Malpractice Insurance Availability and Affordability Problems That Virginia's Physicians Are Facing?, 44 Wash. & Lee L. Rev. 1463 (1987)Google Scholar; Studdert, David M. et al., The Jury Is Still In: Florida's Birth-Related Neurological Injury Compensation Plan After a Decade, 25 J. Health Pol. Pol’y & L. 499 (2000)CrossRefGoogle ScholarPubMed.

36 See Bovberg, supra note 35, at 74, 76.

37 See, e.g., Virginia Birth-Related Neurological Injury Compensation Program; exclusive remedy; exception, Va. Code Ann. § 38.2-5002 (2007) (“[t]he rights and remedies herein granted to an infant on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, his personal representative, parents, dependents or next of kin, at common law or otherwise arising out of or related to a medical malpractice claim with respect to such injury to the infant, including any claims by the infant's personal representative, parents, dependents or next of kin that, by substantive law, are derivative of the medical malpractice claim with respect to the infant's injury, including but not limited to claims of emotional distress proximately related to the infant's injury.”).

38 See Fla. Stat. § 766.118 (2007 & Supp. 2008).

39 Va. Code Ann. § 8.01-581.15 (2007). Cases arising before August 1, 1999 are subject to a $1 million damage cap. For cases arising between August 1, 1999 and June 30, 2000 the damage cap is $1.5 million. For cases arising after June 30, 2000, the cap increases progressively over time to $2 million after June 30, 2008. Id. In 2003, Florida enacted a cap on non-economic damages over forceful objections from the trial bar and others. See generally Kelly, Carly N. & Mello, Michelle M., Are Medical Malpractice Damages Caps Constitutional? An Overview of State Litigation, 33 J.L. Med. & Ethics 515 (2005)CrossRefGoogle ScholarPubMed.

40 See Joint Legislative Audit & Review Comm’n, Review of the Virginia Birth- Related Neurological Injury Compensation Program 49-50 (2003) (hereinafter “JLARC”), http://jlarc.state.va.us/Reports/Rpt284.pdf.

41 See Fla. Office of Program Policy Analysis & Gov't Accountability, NICA Eligibility Requirements Could Be Expanded, But the Costs Would Increase Significantly 3-5 (2004) (hereinafter “OPPAGA”), http://www.oppaga.state.fl.us/reports/pdf/0404rpt.pdf.

42 See Va. Code Ann. § 38.2-5003 (2007). “The claimant must provide the following information: the name and address of the legal representative and the basis for his representation of the injured infant; the name and address of the injured infant; the name and address of any physician providing obstetrical services who was present at the birth and the name and address of the hospital at which the birth occurred; a description of the disability for which claim is made; the time and place where the birth-related neurological injury occurred; a brief statement of the facts and circumstances surrounding the birth-related neurological injury and giving rise to the claim; all available relevant medical records relating to the person who allegedly suffered a birth-related neurological injury, and an identification of any unavailable records known to the claimant and the reasons for their unavailability; appropriate assessments, evaluations, and prognoses and such other records and documents as are reasonably necessary for the determination of the amount of compensation to be paid to, or on behalf of, the injured infant on account of a birth-related neurological injury; documentation of expenses and services incurred to date, which indicates whether such expenses and services have been paid for, and if so, by whom; and documentation of any applicable private or governmental source of services or reimbursement relative to the alleged impairments.” Va. Code Ann. § 38.2-5004 (2007). The program is required to respond to the petition within 70 days of the filing date at the WCC. See § 38.2-5008(C) and 5004(D).

43 The process was described in detail by the State Joint Legislative Audit & Review Commission in 2003. See JLARC, supra note 40, at 77-80.

44 In the past, the WCC entered children into the program without any further proceedings if the program indicated in its thirty-day response to the WCC that the child met the definition in the act. Id. at 78. If the program indicated that the child did not meet the definition in the act, the WCC would obtain a medical panel report and hold a hearing. Id.

45 The parties required to be at the hearing are the claimant and the program. See JLARC, supra note 40, at 78 (citing § 38.2-5006(B)). In practice, the WCC also allows the participating physician or hospital to be a party to the hearing. See JLARC, supra note 40, at 78.

46 The fee for obstetrician-gynecologists and midwives was $5,300 in 2007, increasing by $100 each year thereafter, to a maximum of $5,500 per year. The fee for hospitals is $50 per live birth annually, with a 2007 maximum of $180,000 that increases by $10,000 each year thereafter, to a maximum of $200,000 in any twelve-month period. The fee for nonparticipating physicians was $280 in 2007, increasing by $10 each year thereafter to a maximum of $300 per year. Recently passed legislation raises the 2009 provider contribution to $5,600, with a further increase of $300 to be levied in 2010 and an annual increase of $100 thereafter, to a maximum of $6,200. The hospital contribution will increase by $2.50 per live birth beginning in 2009, rising to a maximum of $55 per live birth. Va. Code Ann. § 38.2- 5020 (2007 & Supp. 2008). The constitutionality of assessing non-participating physicians was unsuccessfully challenged in King v. Va. Birth-Related Neurological Injury Compensation Program, 410 S.E.2d 656, 660-63 (Va. 1991). The fee for liability insurers was $12,701,764 for program year 2007, and is set by statute at one-fourth of one percent of net direct liability premiums written in Virginia as determined by the State Corporation Commission. See Richard A. Lino, Oliver Wyman Actuarial Consulting, Inc., Virginia Birth-Related Neurological Injury Compensation Program: 2007 Annual Report Including Projections for Program Years 2007-2009 49 (2007), http://www.vabirthinjury.com/documents/2007SCCActuarialReport.pdf.

47 Among other things, this mechanism allows accurate compensation, is sensitive to actual life span, assures that funds are directed to the claimant's care and welfare, and provides a lasting financial security to eligible claimants. See JLARC, supra note 40, at 6. It does entail chronic dependency on the program, a heavy load of bureaucracy, and everlasting room for arguments between the program and the claimants’ families regarding the breadth of “necessary medical care.”

48 JLARC, supra note 40, at 6. A recent amendment in Florida added infants who receive an award from NICA to the Children's Medical Services (CMS) program; it requires NICA to provide reimbursement to CMS for services and makes the reimbursement eligible for federal matching funds. See Fla. Stat. § 391.029(c) (2007).

49 See Va. Code Ann. § 38.2-5009(2) (2007 & Supp. 2008). This is not the case in Florida. See Fla. Stat. § 766.31 (2007).

50 See Va. Code Ann. § 38.2-5009(3) (2007); JLARC, supra note 40, at 6.

51 This award has been available only since 2003. The amount to be awarded is within the Commissioners’ discretion. Prior to making an award, the Commission conducts a hearing for the purpose of determining whether such an award is appropriate and, if so, the proper amount and how it should be paid. At the hearing, the Commission hears evidence pertaining to sorrow, mental anguish, solace, grief associated with the death of the infant, and other material factors. Va. Code Ann. § 38.2-5009.1 (2007).

52 Va. Code Ann. § 38.2-5014 (2007). The Virginia statute defines eligible injuries as follows:

Va. Code Ann. § 38.2-5001 (2007) (emphasis added).

53 See Governor's Select Task Force on Healthcare Professional Liability Insurance, Report and Recommendations 303 (Jan. 29, 2003) (unpublished report) (on file with authors) (citing the Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendation (Nov. 6, 1987) as the first to propose a nofault compensation plan for birth-related injuries).

54 OPPAGA, supra note 41, at 2.

55 Id. at 3.

56 Id. at 3-4.

57 Id.

58 Id.

59 Id. at 2.

60 Id.

61 In the case of a multiple gestation, the applicable requirement is a live infant weighing at least 2,000 grams (4.4. pounds). Id. This restriction is meant to exclude premature babies, for whom neurologic injuries are more prevalent and may be primarily the result of prematurity rather than the obstetrician's care. See id. at 7.

62 The Florida statute states that:

Fla. Stat. § 766.302 (2007) (conversions added).

63 See Bovbjerg et al., supra note 35; Studdert et al., supra note 35; OPPAGA, supra note 41; JLARC, supra note 40.

64 Id.

65 Bovbjerg et al., supra note 35, at 93.

66 See JLARC, supra note 40, at 33.

67 See id. at 36.

68 Bovbjerg et al., supra note 35, at 70.

69 The International Cerebral Palsy Task Force has issued a consensus statement stating:

MacLennan, Alastair, A Template For Defining a Causal Relation Between Acute Intrapartum Events and Cerebral Palsy: International Consensus Statement, 319 Brit. Med. J. 1054, 1055 (1999)CrossRefGoogle ScholarPubMed. See also MacLennan et al., supra note 32, at 1688.

70 Erb's Palsy Lawyer's Network, http://www.erbspalsynetwork.com/aboutinjury.htm (last visited November 5, 2008).

71 Id.

72 Chauhan, Suneet P. et. al., Brachial Plexus Injury: A 23-Year Experience from a Tertiary Center, 192 Am. J. of Obstetrics and Gynecology 1795, 1797 (2005)CrossRefGoogle ScholarPubMed.

73 See JLARC, supra note 40, at 72.

74 Experts attest that:

MacLennan et al., supra note 69, at 1058-59.

75 For an example of experts’ disagreement on the scope and breadth of “oxygen deprivation,” see In re Elijah David Johnson, VWC File No. B-04-03 (Va. Worker's Comp. Comm’n May 17, 2005) (unpublished opinion).

76 For a comprehensive list of the clinical indicators that current medical opinion holds to be necessary evidence to draw conclusions about the contributory role of oxygen deprivation, see MacLennan, supra note 69, at 1056.

77 See generally Am. C. of Obstetricians and Gynecologists, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology (2003).

78 See In re Bakke, VWC File No. B-03-04, at 22 (Sept. 7, 2004), aff’d, 620 S.E.2d 107 (Va. Ct. App. 2005), available at http://www.vwc.state.va.us/listdecisions_all/Neonatal/Reviews/B-03-04.rev(9-7-04).doc (“we agree that the ACOG report should not have been considered as independent, probative evidence relating to whether the Program met its burden of rebutting the presumption provided in Code § 38.2-5008.”).

79 This assertion was vehemently opposed by our medical informants. Interview with informants (anonymous), in Richmond, Va. (Dec. 8, 2005) (on file with authors).

80 This was perceived as a problem in Virginia more than in Florida. In Florida, informants stated, determining oxygen deprivation had not proved problematic because in most cases, systemic oxygen deprivation was documented or could be inferred from the entire labor process. Interview with informants (anonymous), in Tallahassee, Fla. (Aug. 4, 2005) (on file with authors).

81 Wolfe v. Va. Birth-Related Neurological Injury Comp. Program, 580 S.E.2d 467, 475 (Va. Ct. App. 2003).

82 But see Blickstein, Isaac & Green, Tamar, Umbilical Cord Blood Gases, 34 Clinics in Perinatology 451, 458 (2007)CrossRefGoogle ScholarPubMed (observing that, although measurements may be affected by several factors related to the method of sampling, storage, and assessment, a wide margin of accuracy exists even when prompt assessment is unavailable; therefore, “it is doubtful whether standard sampling methods would be ineligible in litigation.”).

83 See In re Moses, VWC File No. B-94-4, at 6 (Va. Worker's Comp. Comm’n April 17, 1995), available at http://www.vwc.state.va.us/listdecisions_all/Neonatal/Evidentiary/B-94-04.opn(4-17-95).doc. In this case, the Commission eventually dismissed the claim because there was no evidence that the infection was transmitted through the mechanical injury or of when it was transmitted. Id. at 6.

84 Because of the “difficulty in proving when such an injury was sustained” and the equally difficult task of proving, prospectively, that the infant will permanently need assistance in all activities of daily living, “the legislature enacted a presumption to assist potential claimants in obtaining benefits.” Coffey ex rel. Coffey v. Va. Birth-Related Neurological Injury Comp. Program, 558 S.E.2d 563, 567 (Va. Ct. App. 2002).

85 The WCC opted for accepting such cases once it was established that oxygen deprivation occurred during labor, even if it began at an earlier stage. See In re Wells, VWC File No. B-90-2, at 9-10 (Va. Worker's Comp. Comm’n Feb. 5, 1992), available at http://www.vwc.state.va.us/listdecisions_all/Neonatal/Reviews/B-90-02.rev(2-5-92).doc; In re Haggart, VWC File No. B-98-5, at 10 (Sept. 15, 2000), available at http://www.vwc.state.va.us/listdecisions_all/Neonatal/Evidentiary/B-98-05.opn(9-15-00).doc. See also In re Johnson, VWC File No. B-04-03, at 20-24 (May 17, 2005), available at http://www.vwc.state.va.us/listdecisions_all/Neonatal/Reviews/B-04-03.rev(5-17-05).doc (holding that inflammatory and infectious processes commencing prior to labor yet continuing through the labor, delivery, and immediate post-delivery periods qualify for compensation).

86 See Fla. Stat. § 766.302(2) (2007); Va. Code. Ann. § 38.2-5001 (2007).

87 Fla. Stat. § 766.302(2) (2007).

88 In Meador v. Va. Birth-Related Neurological Injury Comp. Program, 604 S.E.2d 88, 91 (Va. Ct. App. 2004), the court stated, “[n]or can the term ‘birth’ be expanded to include the efforts of hospital staff members to resuscitate a child who was born at home.”

89 Early intubations, such as those performed in preterm births, might delay the onset of the detrimental effect of oxygen deprivation. American Heart Association, Neonatal Resuscitation Guidelines, 112 Circulation 188, 190Google Scholar. In premature infants, the oxygen deprivation that causes the neurological injury does not occur until several hours later. See generally Bhushan, Vidya, Cerebral Palsy and Birth Asphyxia: Myth and Reality, 61 Indian J. Pediatrics 49 (1994)CrossRefGoogle Scholar. Even though the infants receive supplemental oxygen, their lungs are not developed enough to handle the available oxygen. American Heart Association, supra. Thus, the question becomes how to determine exactly when the “injury” occurred. In order to prevent frustration of the programs’ intent of providing coverage to severely injured infants, the statutes give claimants the benefit of the presumption of this element. Va. Code Ann. § 38.2-5001(a)(1) (2007); Fla. Stat. § 766.31 (2007).

90 See Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So. 2d 155, 160 (Fla. Dist. Ct. App. 2002) (holding that the child was not NICA eligible because oxygen deprivation did not occur during labor, delivery, or immediately thereafter).

91 See Fla. Stat. § 766.31(4)(b)-(c) (2007); Va. Code Ann. § 38.2-5020(a), (d) (2007).

92 Fla. Stat. § 766.302(2) (2007).

93 Va. Code Ann. § 38.2-5001 (2007).

94 See Bovbjerg et al., supra note 35, at 97-98.

95 See, e.g., In re Hoell, VWC File No. B-03-11 at 7-16 (Va. Worker's Comp. Comm’n Apr. 2, 2004).

96 See Adventist Health Sys. v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 865 So. 2d 561, 567-68 (Fla. Ct. App. 2004). See also In re Mason Allen McGrady, VWC File No. B- 03-08 at 18 (Va. Worker's Comp. Comm’n Apr. 19, 2005).

97 See OPPAGA, supra note 41, at 8-9.

98 The current life expectancy of enrollees was reported to be around thirty years. See The Fla. obstetric & gynecological Soc’y President's Task Force, NICA Update 2007: The Fla. Obstetric & Gynecological Soc’y President's Task Force Report on the Fla. Birth-Related Neurological Injury Compensation Ass’n (NICA) 4 (2007), http://www.flobgyn.org/nica_newsletter.pdf.

99 This change would result in additional claims expenses of $39.7 million to $52.2 million per year. See OPPAGA, supra note 41, at 6-8.

100 Univ. of Miami v. Echarte, 618 So. 2d 189, 196-198 (Fla. 1993) (holding that a statute that provides a cap on noneconomic damages in medical malpractice is constitutional in part because the legislature showed an “overpowering public necessity.”); Kluger v. White, 281 So. 2d 1, 4-5 (Fla. 1973) (holding that the Constitution guarantees a right of access to courts unless: 1) a reasonable alternative approach is available; or 2) the legislature makes a showing of “overpowering public necessity for the abolishment of such right” and no available alternative method of meeting the public necessity); OPPAGA, supra note 41, at 9 (stating that, to expand coverage, legislature will have to include in the law findings of fact that compensation for these injuries serves an overpowering public necessity, provides no commensurate benefit to plaintiffs and no alternative or less onerous method to meet the public necessity has been shown).

101 See JLARC, supra note 40, at 52.

102 Id. at 70.

103 In 1989, the Medical Society of Virginia contracted with the Williamson Institute at the Medical College of Virginia to conduct a study of birth injury claims in Virginia, examining whether the definition in the Act captured the types of cases that were most likely to result in high payouts to claimants. Reviewing actual medical malpractice claims data in Virginia between 1980 and 1988, the researchers found that babies who met the disability criteria of the previous definition were very likely to die shortly after birth, and that the definition excluded a large number of infants who had more costly medical needs and who had obtained higher payouts from medical malpractice suits. The research concluded that the previous definition of eligibility was too restrictive. See JLARC, supra note 40, at 90; Bovbjerg, supra note 35, at 80.

104 The courts have not gone in this direction. See, e.g., Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349, 1356 (Fla. 1997) (adhering to the plain wording of the statute and requiring that injuries must involve permanent and substantial impairment that has both physical and mental elements).

105 Other issues include statute of limitations or tolling of the statute of limitations. Fla. Stat. § 766.306 (2007).

106 Fla. Stat. § 766.314(4)(a) (2007).

107 Studdert, supra note 35, at 516.

108 In 2000, the Virginia program was expanded to include professional corporations and other entities through which physicians may practice. Va. Code Ann. § 38.2-5001 (2007) (effective April 1, 2000). See Berner v. Mills, 579 S.E.2d. 159, 161-162 (Va. 2003) (altering the rulings in Fruiterman & Assocs. v. Waziri, 525 S.E.2d 552 (Va. 2000)).

109 The Virginia statute requires that “Each physician, hospital, and nurse midwife shall disclose in writing to their obstetrical patients … whether such physician, hospital or nurse midwife is or is not a participating provider under the Program.” Va. Code Ann. § 38.2- 5004.1 (2007). Parents are not required to be informed that the program has exclusive jurisdiction over birth injury claims until after a baby is delivered. Id. (“In addition to any other postpartum materials provided to the mother … every hospital shall provide for each infant who was hospitalized in a neonatal intensive care unit an informational brochure … describ[ing] the rights and limitations under the Program, including the Program's exclusive remedy provision … .”).

110 The law states:

Fla. Stat. § 766.316 (2007).

111 See Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 311 (Fla. 1997) (holding that “notice under the plan was intended to serve as a condition precedent to immunity … .”). There is a certain irony when one juxtaposes the situations in Florida and Virginia with respect to patients’ choices. Florida has strict notification requirements, but participation rates are so high among obstetrician-gynecologists that, as a practical matter, it would be difficult for patients to exercise their choice to have a non-participating provider. In Virginia, participation rates are lower and patients likely could find a non-participating obstetriciangynecologist to deliver their baby, but they may receive inadequate notice of their right to do so.

112 For example, plaintiffs’ attorneys could argue that the mother was underage or did not understand English. However, a patient's signature acknowledging receipt of the notice creates a rebuttable presumption that notice was given. See Fla. Stat. § 766.316 (2007).

113 This issue remained in conflict until recently. Some cases held that the administrative law judge (ALJ) determines whether notice was given. See Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 880 So. 2d 1253, 1259-1260 (Fla. Dist. Ct. App. 2004); O’Leary v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 757 So. 2d 624, 627 (Fla. Dist. Ct. App. 2000); Behan v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 664 So. 2d 1173, 1174 (Fla. Dist. Ct. App. 1995). Other cases held that the ALJ could not determine the sufficiency of notice. See Fla. Health Sci. Ctr., Inc. v. Div. of Admin. Hearings, 871 So. 2d 1062, 1065-66 (Fla. Dist. Ct. App. 2004); Fla. Birth-Related Neurological Injury Comp. Ass’n v. Ferguson, 869 So. 2d 686, 688 (Fla. Dist. Ct. App. 2004); All Children's Hosp. v. Dep't of Admin. Hearings, 863 So. 2d 450, 455 (Fla. Dist. Ct. App. 2004); Bayfront Med. Ctr., Inc. v. Div. of Admin. Hearings, 841 So. 2d 626, 628 (Fla. Dist. Ct. App. 2003). The Florida Supreme Court recently decided that “when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction to make findings regarding whether a health care provider has satisfied the notice … requirement … .” Florida Birth-Related Neurological Injury Comp. Ass’n v. Florida Div. of Admin. Hearings, 948 So. 2d 705, 707 (Fla. 2007).

114 All Children's Hosp., Inc. v. Dep't of Admin. Hearings, 989 So. 2d 2, 3 (Fla. Dist. Ct. App. 2008).

115 Schur v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 832 So. 2d 188, 192 (Fla. Dist. Ct. App. 2002).

116 Fla. obstetric & gynecological Soc’y President's Task Force, supra note 98, at 5-6, 8; see OPPAGA, supra note 41, at 6 n. 22.

117 See Tabb, 880 So. 2d at 1255 (considering evidence that hospital routinely provided patients with NICA brochure); Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 310, 314 (Fla. 1997) (requiring that patient routinely receive notice of plan in “reasonable time prior to delivery” and that such notice “shall be provided on forms furnished by the association and shall include clear and concise explanation of a patient's rights”); Weeks v. Florida Birth- Related Neurological, 977 So.2d 616, 619 (2008) (requiring hospitals give notice to patients “in sufficient time to make a meaningful choice”). See generally OPPAGA, supra note 41.

118 “Because of the ‘difficulty in proving when such an injury was sustained’ and the equally difficult task of proving, prospectively, that the infant will permanently need assistance in all activities of daily living, ‘the legislature enacted a presumption to assist potential claimants in obtaining benefits.’” Cent. Va. Obstetrics & Gynecology Assocs, P.C. v. Whitefield, 590 S.E.2d 631, 636, n.6 (Va. Ct. App. 2004) (citing Coffey ex rel. Coffey v. Va. Birth-Related Neurological Injury Comp. Program, 558 S.E.2d 563, 568 (Va. Ct. App. 2002)).

119 Va. Birth-Related Neurological Injury Comp. Program v. Young, 541 S.E.2d 298, 301 (Va. Ct. App. 2001) (finding that “[t]he purpose of Code § 38.2-5008(A) is to implement a social policy of providing compensation to families whose neonates suffer birth-related neurological injuries. To give full effect to this policy, the presumption must be clothed with a force consistent with the underlying legislative intent … . Therefore, the presumption set forth in Code § 38.2-5008(A) shifts to the Program both the burden of production and the burden of persuasion on the issue of causation.”).

120 Va. Code Ann. § 38.2-5008 (2007 & Supp. 2008). In short, the elements to be proved are (1) injury to brain or spinal cord (2) caused by oxygen deprivation or mechanical injury (3) leading to catastrophic physical impariment. The Florida wording is very similar: “If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury.” Fla. Stat. § 766.309 (2005).

121 Coffey, 558 S.E.2d at 569.

122 Wolfe v. Va. Birth-Related Neurological Injury Comp. Program, 580 S.E.2d 467, 473 (Va. Ct. App. 2003).

123 See Coffey, 558 S.E.2d at 563; Whitefield, 590 S.E.2d 631, 636, n.6.

124 Whitefield, 590 S.E.2d at 636, n.6.

125 Va. Code Ann. § 38.2-5008(A)(1)(b) (2007 & Supp. 2008).

126 See Wolfe, 580 S.E.2d 467 at 580. Another presumption that several of our informants in Virginia suggested should be added to the decision-making process relates to premature babies. Currently, BIP excludes them outright. The rationale is that there are too many competing causes of serious neurological injury in this subpopulation, most of which are far more likely than perinatal management to have caused the impairment. Several informants accepted this clinical fact, but argued that such infants should nonetheless be candidates for compensation, provided that claimants carried the burden of burden of proof for all of the prescribed criteria statutory eligibility. Interview with informants (anonymous), in Charlottesville, Va. (Dec. 7, 2005) (on file with authors).

127 See Fla. Stat. § 766.316 (2007).

128 Shoulder dystocia and Erb's palsy could also be folded into the covered outcomes were this approach adopted. Interview with informants (anonymous), in Richmond, Va. (Dec. 5, 2005) (on file with authors). Shoulder dystocia occurs when the infant's anterior shoulder cannot pass below the mother's pubic symphysis and the remainder of the body fails to deliver. Id. Erb's palsy is the paralysis of a group of muscles of the shoulder and upper arm, commonly caused by difficult childbirth. These injuries can be serious, but vary in their severity. Id. They frequently show up in malpractice claims, but one interviewee commented that “you just can't win these cases in court.” Id. Informants who advocated expanding program coverage to these injuries stressed the attractiveness of being able to care for children who have difficulty obtaining compensation in tort, but others cautioned that covering these injuries would be fiscally feasible only if a fixed compensation amount was agreed upon and a re-evaluation of the patient's condition was conducted at later dates to assess actual disability on an ongoing basis. Id. Otherwise, this expansion would likely result in the overcompensation of a large number of claimants and the failure to adequately compensate a small number of severely injured claimants. Id.

129 The OPPAGA report notes:

OPPAGA, supra note 41, at 1.

130 See Kluger v. White, 281 So. 2d 1, 3 (Fla. 1973); Univ. of Miami v. Echarte, 618 So. 2d 189, 191 (Fla. 1993). See also Fla. Birth-Related Neurological Injury Comp. Ass’n v. Division of Admin. Hearings, 686 So. 2d 1349, 1355 (Fla. 1997) (stating that since NICA is a statutory substitute for common-law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms and the legislature's explicit intent); Meador v. Va. Birth-Related Neurological Injury Comp. Program, 604 S.E.2d 88 (Va. Ct. App. 2004) (same).

131 For example, Va. Code Ann. § 38.2-5004 (2007 & Supp. 2008) directs the Board of Medicine and the Department of Health to review all birth injury petitions submitted to the WCC and assess whether the physician(s) involved in the birth provided substandard care that should give rise to disciplinary action. Respondents reported that in reality, however, only minimal investigations are carried out, and in most cases, the agencies read the petitions but take no further action. Some non-medical informants felt that programs fail to hold physicians accountable for their negligence. Interview with informants (anonymous), in Charlottesville, Va. (Dec. 8, 2005) & Richmond, Va. (Dec. 7, 2005) (on file with authors).

132 See Brennan, Troyen A., Helping Courts with Toxic Torts: Some Proposals Regarding Alternative Methods for Presenting and Assessing Scientific Evidence in Common Law Courts, 51 U. Pitt. L. Rev. 1, 63 (1989)Google Scholar; Mello et al., supra note 12, at 470.

133 See Common Good, supra note 21.

134 Id.

135 See JLARC, supra note 40, at 7-8.

136 Id. at 76-77.

137 Id. at 80.

138 Id. at 90.

139 See Kenney Shipley, Executive Director, Neurological Injury Compensation Association, NICA: An Alternative That Works For OBGYN, http://www.flobgyn.org/se/2110.php.

140 Over thirty percent of medical panels’ recommendations are rejected by the WCC. JLARC, supra note 40, at 79.

141 Id. at 78; see also Welcome to the VA Birth Injury Program, http://www.vabirthinjury.com/Eligibility_Benefits.htm (last visited Nov. 4, 2008).

142 The obstetrician-gynecologists who served as experts in both programs are maternalfetal medicine specialists with expertise in high-risk obstetrics. JLARC, supra note 40, at 83. The experts believed that they had sufficient medical knowledge to evaluate the medical reports and opinions, including those of pediatric neurologists and developmental experts, that routinely accompany claim files. Id. at 83-84.

143 See, e.g., Commonwealth v. Bakke, 620 S.E.2d 107, 112 (Va. Ct. App. 2005) (“Of the physicians who have offered expert opinions in this case, we conclude that Drs. Hermansen and Latimer are the most qualified to evaluate the timing of the injury causing [the infant’s] cerebral palsy. Dr. Hermansen is a pediatrician who specializes in neonatology and Dr. Latimer is a neurologist specializing in treating children. In contrast, Drs. Christmas, VanDorsten and the members of the [medical panel] are obstetricians, gynecologists and specialists in maternal-fetal medicine who, although involved in high-risk pregnancies involving mothers and fetuses, do not regularly treat infants after their birth.”).

144 H.B.1305, 2008 Sess. (Va. 2008).

145 Id.

146 See JLARC, supra note 40, at 86. As of March 2008, BIP pays $3,000 to the expert's institution for each review completed. Id.

147 See Shipley, supra note 139.

148 Florida Obstetric and Gynecological Society President's Task Force, supra note 98, at 5.

149 But see, id.

150 JLARC, supra note 40, at 69-81.

151 The JLARC opined similarly: “The medical panels should develop a review form, in consultation with the Workers’ Compensation Commission, that addresses each aspect of the eligibility definition. This form should be completed by the panels in each case they review for the Workers’ Compensation Commission.” Id. at 83.

152 See Chassin, Mark R., Is Healthcare Ready for Six Sigma Quality?, 76 Milbank Q. 565, 582 (1998)CrossRefGoogle ScholarPubMed.

153 See Kachalia et al., supra note 19.

154 See JLARC, supra note 40, at 83.

155 Id. at 82-83.

156 BIP actually predated NICA, and in its November 6, 1987 report, the Florida “Task Force recommended adoption of a no-fault compensation plan for birth-related neurological injuries similar to the then-newly-enacted Virginia plan (1987 Va. Acts Ch. 540).” Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 310 (Fla. 1997) (citing Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendations 31 (1987)).

157 In a 2003 case, for example, a Florida Court of Appeal noted that the Florida birth injury program was intended to have been similar to the preexisting program in Virginia. It then cited a Virginia appellate court's interpretation of a provision in the Birth-Related Neurological Injury Compensation Act and noted that “[o]ur analysis in this case appears consistent with the Virginia court.” Romine v. Fla., 842 So.2d 148, 155 (Fla. Dist. Ct. App. 2003) (citing Berner v. Mills, 560 S.E.2d 925, 925 (2002)). We find this exchange encouraging, and the potential for state-to-state migration of administrative compensation programs as an appealing concept.

158 See JLARC, supra note 40, at 74.

159 For a discussion of some of these ambiguities, see generally Giacoia, George P., Low Apgar Scores and Birth Asphyxia: Misconceptions That Promote Undeserved Negligence Suits, 84 Postgraduate Med. 77 (1988)CrossRefGoogle ScholarPubMed; Leuthner, Steven R. & Das, Utpala G., Low Apgar Scores and the Definition of Birth Asphyxia, 51 Pediatric Clinics North Am. 737 (2004)CrossRefGoogle ScholarPubMed; Perlman, Jeffrey M., Intrapartum Hypoxic-Ischemic Cerebral Injury and Subsequent Cerebral Palsy: Medicolegal Issues, 99 Pediatrics 851 (1997)CrossRefGoogle ScholarPubMed.

160 JLARC, supra note 40, at 80.

161 Fla. Stat. §766.106(2) (2007).

162 Id.

163 See generally Fla. Stat. §766.106 (2007); Fla. Stat. §766.315 (2007).

164 Interview with informants (anonymous), in Tallahassee, Fla. (Aug. 4, 2005) (on file with authors).

165 For an example of a hotly disputed case, see In re Katie Taylor, VWC File No. B-05- 03 (Va. Worker's Comp. Comm’n 2005) (involving disputes over evidentiary rules and discovery).

166 See, e.g., In re Elijah David Johnson, VWC File No. B-04-03 (Va. Worker's Comp. Comm’n May 17, 2005) (unpublished opinion).

167 The preponderance standard is described in Cent. Va. Obstetrics & Gynecology Assocs, P.C. v. Whitefield, 590 S.E.2d 631, 639 (Va. Ct. App. 2004), and Coffey ex rel. Coffey v. Va. Birth-Related Neurological Injury Comp. Program, 558 S.E.2d 563, 567-68 (Va. Ct. App. 2002).

168 This is, of course, a critique that applies to many areas of the U.S. legal system. It is noteworthy that BIP does reimburse claimants’ “reasonable legal expenses,” but our informants reported that the reimbursement is usually less than the amount spent and that it does not help those who may cannot afford to front the funds initially (or find an attorney willing to accept delayed and contingent payment), nor is this reimbursement available to those who are ultimately rejected by BIP. See JLARC, supra note 40, at 88. See also interview with informants (anonymous), in Richmond, Va. (Dec. 8, 2005) & Charlottesville, Va. (Dec. 7, 2005) (on file with authors).

169 See Hochberg, Francine A., The Injustice of Health Courts, 44 Trial 42, 46 (2008)Google Scholar.

170 In our interviews, a Virginia program official stated that “[t]he tendency of the WCC and the courts to broaden eligibility is compromising the financial basis of the Program. The law must take sides on the major issue—is it meant to provide support to afflicted children (and thus must find ways to provide the needed funds) or narrow the eligibility only to ‘tortwinnable’ cases” where doctors’ fault caused the injury?” Interview with informants (anonymous), in Richmond, Va. (Dec. 8, 2005) & Charlottesville, Va. (Dec. 7, 2005) (on file with authors).

171 Brennan, Troyen A., Causal Chains and Statistical Links: The Role of Scientific Uncertainty in Hazardous-Substance Litigation, 73 Cornell L. Rev. 469, 493-501 (1988)Google Scholar.

172 Similar organs have been suggested in other areas fraught with uncertainty. See id. at 525 (“[a] Federal Hazardous Substance Science Panel would perform three functions: policymaking, adjudication, and boundary-drawing. These three functions would deal respectively with the first, second, and third levels of uncertainty.”).

173 Another major contributor to Virginia's more adversarial climate is the growing financial unsoundness of its program, as opposed to Florida. See JLARC, supra note 40, at 8.

174 Mohr, James C., American Medical Malpractice Litigation in Historical Perspective, 283 JAMA 1731, 1731-32 (2003)CrossRefGoogle Scholar.

175 Barringer, Paul J. et al., Administrative Compensation of Medical Injuries: A Hardy Perennial Blooms Again, 33 J. Health Polit. Pol’y L. 725, 752 (2008)CrossRefGoogle Scholar.