Procedures for assessing critically ill children who might qualify for lifelong medical care are becoming mired in legal complexities that have divided the medical community, prompted calls for sanctions against the state attorney general's office and left families despairing for help.

New criteria used to measure the eligibility of children for care in the state's birth-injury program also threaten to push legal costs in the difficult cases into the tens of thousands of dollars, attorneys say.

One lawyer described the system's new standards of eligibility as a "morally twisted" means to reduce the program's costs by cutting back on children who qualify. The program pays the costs of legal representation for families seeking help, but only if the child is accepted.

. . .

In a dramatic scene that played out in an Arlington County courtroom last week, the shifting complexities of the state's Birth-related Neurological Injury Compensation Program came to a head.

While their lawyer argued a few feet away that delaying tactics and conflicting medical opinions are robbing the family of crucial help and time, the parents of a child injured at birth struggled to administer intravenous fluids to their nearly comatose daughter.

"Our lives have been turned upside down," said Mai Nguyen, who escaped Vietnam almost 30 years ago by boat. Her daughter Shayla Pham's traumatic birth in February 2003 after an uneventful pregnancy is gradually unraveling the family's resources, strength and emotional health.

Nguyen has left her accountant's job to care for her daughter, whose brain injury at birth left her with cerebral palsy of the severest degree. She is blind, will never walk or talk and has shown virtually no mental development in her 18 months of life.

Mai's husband, Robert Pham, who also fled Vietnam in a harrowing walk across Cambodia, is a subway mechanic whose daughter's intensive, hands-on care limits him to two or three hours of sleep a night.

The couple is so protective of their daughter's needs that they have not shared a night of sleep since her birth.

The first-floor of their town house has become a makeshift hospital ward filled with medical equipment, oxygen supplies, a heart monitor and intravenous-fluid systems that Shayla relies on for nourishment. The family is tens of thousands of dollars in debt from unpaid medical costs and other bills that are on hold.

The Phams sought help from the state's birth-injury program, a no-fault program of lifetime care for children whose injuries can be linked to oxygen loss at birth. Such outcomes are rarely the result of medical error.

Created in 1987 by the General Assembly in response to a medical-malpractice insurance crisis, the program blocks eligible children from suing doctors and hospitals that participate in and pay fees to the program. In return, children receive lifetime medically necessary care not provided through insurance or government programs.

For the Phams, the program's offer of nursing help, medical care and transportation would be a godsend. "We could hope to start our lives again," Nguyen said.

But faced with its own mounting long-term debt in the tens of millions of dollars, the program has reduced benefits and has pushed to limit the number of children it accepts.

. . .

Part of the effort to more consistently assess eligible children has involved the use of controversial standards that panels of doctors at state medical schools have adopted. The criteria are considered important markers of brain injuries linked to oxygen loss at birth.

The standards were developed by international teams of researchers and presented nationally in January 2003. They have received the endorsement of important medical groups across the country but have been widely criticized by trial lawyers as a vehicle to insulate doctors from allegations of medical malpractice.

Formally put into use this year by state medical schools, which are charged with assessing children who are eligible for the birth-injury program, the criteria are threatening to undermine the program's important no-fault underpinnings, some observers argue. State law does not require strict adherence to the markers in order for a child to enter the program.

"The medical panels just don't get it," Ann Jones, a Fairfax lawyer representing the Phams, argued last week. She attacked a panel report as unnecessarily focused on irrelevant standard-of-care issues and assumptions about other possible causes of injury.

She also has sought sanctions against the attorney general's office, which represents the birth-injury program, for allegedly withholding key medical opinions that might support entry of Shayla Pham into the program.

Jones has charged that the program has deliberately sought medical opinions that do not support a child's entry into the program, an allegation that the attorney general's office has strenuously denied in court papers. Jones should be cited herself for making the allegation, the attorney general's office has argued in the documents.

"The first tragedy for the Pham family was seeing what was a perfectly healthy baby for the entire course of Mai's pregnancy being born almost dead," Jones said after last week's hearing. "The second tragedy has been the delays and frustrations this family has experienced trying to get into this program in the face of overwhelming evidence that this child meets the definition."

. . .

Jones submitted more than 1,400 pages of medical records and medical opinions from Shayla Pham's teams of doctors that directly attested to the child's grim outlook and eligibility for the program.

More than three months later and less than a week before last week's hearing, a panel of doctors at Eastern Virginia Medical School submitted a report that reversed the conclusions of an earlier report from one of the panel's doctors.

The earlier report recommended Shayla for entry into the program. But the second report recommended against acceptance and shifted the primary cause of Shayla's injury to infection that reached the baby before birth. The report acknowledged periods of oxygen deficiency but said they likely occurred before and after her birth but not during labor and delivery.

Key elements of that conclusion hinged on the new criteria, one of which requires a benchmark reading of acidity in the baby's blood. Another element of the criteria requires prolonged low scores, called Apgar scores, that subjectively measure a baby's condition at birth.

While the medical school panel regarded Shayla's acid-blood reading as "normal," other experts and hospital records describe it as evidence of "panic" conditions. It measured fourteen hundredths higher than the level set by the criteria to show acidosis.

And Shayla's Apgar scores improved markedly in the first minutes of life, according to her experts, because doctors were working frantically to restore her breathing by administering 100 percent oxygen through a tube inserted in her throat.

When the oxygen stopped, Shayla immediately regressed, unable to breathe adequately on her own, expert opinions offered by the Phams noted.

After weeks of effort through court orders to determine the nature of expert testimony the program had assembled through the attorney general's office, Jones learned the day before the hearing last week that an independent expert paid by the program had concluded that Shayla Pham fully meets eligibility requirements for program care.

"The brain injury was caused by oxygen deprivation during labor," this expert, a Richmond obstetrician, concluded. The report was dated July 24, 2004, more than a month before Jones received it.

At the hearing, the program suddenly dropped its long-standing opposition to Shayla's entry; an assistant attorney general, Angela Axselle, said merely that the program takes no position in the case and left it to the Phams to establish that Shayla meets program guidelines.

Jones was incensed. The Phams may have to wait weeks more for a decision in the case, she said, and a denial based on the medical school report could mean years of appeals. If the birth-injury program had agreed to Shayla Pham's entry into the program based on the first medical school report and Phams' voluminous petition, the family could have been receiving benefits months ago.

. . .

The attorney general's office has cited cases that have received relatively quick acceptance and stressed the need to thoroughly assess eligible children because of the program's financial condition. There is no requirement to take a claimant's medical records at face value, nor to reveal medical opinions sought by the program, the program has argued.

But the rigid adherence to the birth-injury criteria by the medical panels is splitting the medical community and prolonging cases, another lawyer said.

"I find a strong consensus in the Hampton Roads medical community that few obvious cases ever exist and that by requiring children to meet the criteria, the panels are overly excluding deserving children," said Newport News lawyer Jonathan H. Walker.

"I was appalled to see the letter from the panel at VCU," Hampton pediatrician Dr. David Holzager wrote last month in the case of a patient whose case was turned down by a medical panel at Virginia Commonwealth University Health Systems.

"I am of the opinion that he suffered severe hypoxica and subsequent ischemia during his delivery," Holzager said, referring to medical terms used to describe forms of oxygen loss. "I do not need a set of criteria that are based on lab tests to tell me this."

. . .

Other doctors treating 4-year-old Joelan Harris concurred.

Harris, whose father has been laid off and whose mother is a schoolteacher in Hampton, receives dedicated support and care from his extended family. But insurance benefits are running out and the family repeatedly has been denied help through Medicaid and Social Security.

"They tell me we make too much money," said Malinda Harris. Christmas for Joelan means browsing through a catalog of braces, supports and other accessories for disabled children.

"We find something we think we can afford for him and start making payments," Malinda Harris said.

Walker, the Harris family's lawyer, described the stricter criteria and higher burden of proof facing injured children and their families as a "morally twisted" way of saving money on the costs of care.

"Whoever saw this as the answer to the program's financial woes should be hogtied," he said.

The amount of fees allowed by law that can be charged against doctors, hospitals and insurers to keep the program healthy increased for the first time in 17 years this year, but only enough to raise annual contributions by a few percentage points.

"Parents, already strapped by the huge financial burden of caring for a severely disabled child, can ill-afford the cost of retaining medical experts" to overcome the panel reports, Walker said. "The system forces deserving parents to either give up or bear the costs and the anxiety of needless litigation."