
    CIRCUIT COURT OF FAIRFAX COUNTY
    Reaves v. Rattner
    May 24, 1994
    Case No. (Law) 128262
   By Judge R Bruce Bach

On May 13, 1994, this matter came before the Court on Defendant’s Demurrer alleging that the Circuit Court lacks subject matter jurisdiction. Counsel presented oral argument, and the matter was taken under advisement. After due consideration the Court sustains the demurrer with prejudice.

Plaintiff’s Motion for Judgment alleges negligence resulting in a birth-related neurologic injury to Plaintiffs decedent, which resulted in his death ten months later. The issue before the Court is whether the Virginia Birth-Related Neurological Injury Compensation Act bars plaintiffs recovery under the Virginia Wrongful Death Act.

The Act applies to “all claims for birth-related neurological injuries occurring in this Commonwealth on and after January 1, 1988.” Va. Code § 38.2-5014. It contemplates recovery by administrators of a deceased infant’s estate where the infant survived birth but later succumbed to his birth-related injuries. Va. Code § 38.2-5001. In this instance, but for the nature of the injury, the deceased’s estate would have a cause of action under the Wrongful Death Act. However, the rights and remedies under the Act exclude all other rights of the injured infant arising out of a medical malpractice claim against a participating physician with respect to such injury. Va. Code § 38.2-5002(B). It is the responsibility of the Workers’ Compensation Commission, not this Court, to determine both whether the defendant is a “participating physician” and whether the injury is a “birth-related neurological injury.” Va. Code § 38.2-5008.  