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King v. Virginia Birth-Related Neurological Injury Compensation Program11/8/1991
JUSTICE HASSELL delivered the opinion of the Court.
In this appeal, we consider State and Federal constitutional challenges to the Virginia Birth-Related Neurological Compensation Act, Code § 38.2-5000, et seq.
I.
This suit was filed by 29 doctors, licensed to practice medicine in this Commonwealth, against the Virginia Birth-Related Neurological Injury Compensation Program, the Virginia Birth-Related Neurological Injury Compensation Board, and the State Corporation Commission. The doctors allege that the Birth-Related Neurological Compensation Act is unconstitutional because it violates their rights to due process and equal protection guaranteed by the State and Federal Constitutions, and violates Article IV, § 14, of the Virginia Constitution which prohibits special legislation.
The Program and the Board filed demurrers, and the State Corporation Commission filed a motion to dismiss. The doctors filed a motion for summary judgment. The trial court sustained the demurrers.
II.
The Virginia Birth-Related Neurological Injury Compensation Act was enacted by the General Assembly in 1987. Under the Act, an infant who incurs a birth-related neurological injury caused by the negligence of a participating physician cannot maintain a common law tort action against the participating physician other than as provided by the Act, or when there is clear
and convincing evidence that the participating physician willfully or intentionally caused such injury. Code § 38.2-5002(B) and (C). The Act defines "birth-related neurological injury" as an
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 in the immediate post-delivery period 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.
Code § 38.2-5001. A "participating physician" is a physician licensed to practice medicine in Virginia and who practices obstetrics or performs obstetrical services full or part-time as authorized in a plan of operation. Code § 38.2-5001.
An infant who incurs a birth-related neurological injury may file a claim against a participating physician with the Industrial Commission, which has jurisdiction to decide all claims made pursuant to the Act. Code §§ 38.2-5003 and -5004. The Industrial Commission is authorized to determine whether the injury is a birth-related neurological injury, whether the obstetrical services were delivered by a participating physician at birth, and how much compensation , if any, is awardable pursuant to the Act. Code §§ 38.2-5008 and -5009.
Each participating physician is required to pay an annual assessment of $5,000 to the Program. Code § 38.2-5020(A). All licensed non-participating physicians in Virginia, with certain limited exceptions, are required to pay an annual assessment of $250, even though they may not be obstetricians or may not perform any obstetrical services. Code § 38.2-5020(D). These assessments are used to fund the Program.
III.
The doctors, who are all "non-participating physicians," argue that the $250 annual assessment imposed upon non-participating
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