“What’s wrong with my baby?” newbornbaby

Those are probably some of the most terrifying words to utter for a new mother who had just endured a difficult labor and delivery. But that’s what plaintiff in Blanche v. U.S. called out as the hospital staff at a suburban Illinois whisked the 11-pound newborn girl away for treatment.

As it turned out, the girl suffered Erb’s palsy, a type of nerve damage caused by problems at the time a baby is delivered. The mother sought justice for her little girl and filed a lawsuit for damages against the hospital and delivering physician.

Problem was, she had waited too long to file the claim against the doctor and hospital.

The statute of limitations grants only a small window of time in which a claim can be filed, and the clock usually starts ticking on the date the injury occurred. There could be some exceptions, especially if it wasn’t clear from the outset that the baby was injured or what caused the injury. So the clock starts ticking when the injury is discovered. It’s called the “discovery rule.”

Plaintiff tried to argue this recently before the U.S. Court of Appeals for the Seventh Circuit, but the justices rejected her claim, finding the statute of limitations began ticking shortly after the little girl was born because this is when she knew – or reasonably should have known – the girl was injured and the source of the injury.

A claim for general negligence in Florida has to be brought within four years of the date of injury, or else it’s forever barred. A claim for medical malpractice in Florida (as in Illinois, where this claim arose) has to be brought within two years (with a few exceptions). Meanwhile, all claims brought under the Federal Tort Claims Act have to be filed within two years.

Because the hospital in question receives federal funding from the U.S. government. That means the hospital – and its employees – were governed by the Federal Tort Claims Act.

In this case, it didn’t make much difference as far as the timeline because the statute of limitations in both cases was two years.

Plaintiff’s child was very large. In fact, the baby was almost certainly too large to safely undertake a vaginal birth.

Plaintiff went to the hospital emergency room, complaining of abdominal pain. The emergency room doctor made the call to induce her labor. It is not clear whether he conducted any analysis on the size of the baby before doing so. He was not the doctor who provided her prenatal care.

The labor was long and difficult. The doctor positioned the plaintiff in many different ways. The child got stuck at one point. Finally, plaintiff recalled she heard a “popping sound” and the child emerged.

She was immediately rushed away. She saw her a time later in the neonatal intensive care unit, where she had a splint on her arm. At that time, the nurse told her that her little girl suffered a birth injury. She also said the doctor “apologized” to her for the difficult delivery, but she could not remember his exact words. Before leaving the hospital, the girl was diagnosed with Erb’s palsy.

When she took the girl home, family and friends asked about the injury to the girl’s arm, and some told her she needed to talk to a lawyer.

She did meet with an attorney about two weeks after the girl’s birth, but ultimately chose not to hire him because she did not feel he was a good fit.

But then, she took no action for another year. She met with another personal injury attorney after hearing a television advertisement. She retained that attorney, who requested her prenatal records. However, the action wasn’t filed until more than a year after those records were received. By that point, it was outside the two-year window of FCTA’s statute of limitations.

Defendant moved for dismissal and trial court granted. Plaintiff argued on appeal she hadn’t realized the seriousness of her daughter’s injury until a year after her little girl was born, after she met with a doctor at a local children’s hospital.

However, justices agreed plaintiff should have known about the injury and its source shortly after the baby was born.

If your child has suffered a Miami birth injury, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Blanche v. U.S. , Feb. 2, 2016, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

University of Miami v. Ruiz – Florida High Court Declines Birth Injury Case Review, Jan. 4, 2016, Miami Birth Injury Attorney Blog