Florida’s Third District Court of Appeal has remanded a birth injury medical malpractice case back to the trial court, deciding the lower court had misread the law in finding the case had been time-barred.

babyhand2-225x300In Exposito v. University of Miami School of Medicine, the appellate court held the cause of action for a medical malpractice claim begins accrual at the time the last element constituting the cause of action occurs. In this case, the plaintiff contends she did not know her daughter’s extensive injuries – including cerebral palsy, cortical blindness, spastic quadriplegia, encephalopathy and seizures – were potentially caused by negligence by doctors prior to her birth.

Our Fort Lauderdale birth injury attorneys know that in many birth injury cases, the causes of a baby’s injuries are not always immediately apparent. The fact is, 7.4 births out of every 1,000 will result in some type of injury. Causal determination is not always a simple matter, particularly when there is a possibility that negligent prenatal care may have been a factor.

In the Exposito case, the woman gave birth to twin daughters prematurely, which is common for mothers of multiples. However, one twin was born healthy, while the other had a host of health problems.

The plaintiff now contends that her daughter’s maladies are the result of doctors ignoring signs of severe fetal distress for 12 hours prior to her giving birth vaginally. She asserts that doctors continued to mistake the vital signs of the healthy twin for the one who was in distress, and failed to order a cesarean section that might have prevented her daughter’s severe and permanent brain damage.

The girls were born in 2005. When the mother first filed a notice of claim in 2009, her counsel indicated the “date of incident” as her daughters’ birth date. The formal complaint was filed in 2010, alleging malpractice by the defendants.

The defendants responded with a motion to dismiss, arguing the claim was not filed within the three-year statute of limitations, per Florida Statute 769.28(6).

What became an issue of contention, however, was the “date of incident.” The mother sought to amend her complaint to indicate the “date of incident” was not the birth date of her daughter, but rather the point at which she learned that her daughter’s injuries were probably the result of negligent medical care.

The trial court granted the defendants’ motion to dismiss on the grounds the plaintiff had filed too late.

The appellate court reversed, citing the legal precedent established in Tanner v. Hartog in 1993 and Florida Statute 95.11(4)(b). While the negligence occurred at the time of the child’s birth, the court indicated the last cause of action was the discovery of an actionable incident.

The reason the mother did not find out about the cause of her daughter’s condition was largely a result of the fact that medical test results indicating the delay during delivery caused her injuries were lost by the defendants.

The court noted the defendant’s assertion of a more restrictive formula for the statute of limitations ran contrary to the plain language of the law.
Contact the birth injury lawyers of Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Exposito v. University of Miami School of Medicine, June 18, 2014, Florida’s Third District Court of Appeal

More Blog Entries:

Gomez v. Saurewein – Informed Consent in Medical Malpractice Cases Involving Misdiagnosis,July 7, 2014, Fort Myers Birth Injury Lawyer Blog