In Florida, the statute of limitations for medical malpractice cases is two years. However, there are a number of exceptions, and birth injury cases in particular get a fair amount of leeway. The general idea is that discovery of the injury itself or of the cause is not always possible within the normal two-year time frame.
F.S. 95.11(4)(b) holds that an action for medical malpractice must be initiated from either 2 years from the time of the incident giving rise to the action or within 2 years of the time the incident is discovered or should have been discovered with the exercise of due diligence. However, there is a 4 year statute of repose, which means no action can be initiated after that four-year deadline. But, there is one exception: Actions brought on behalf of a minor on or before the child’s 8th birthday.
In the recent case of Coffey-Garcia v. South Miami Hospital, recently before Florida’s Third District Court of Appeal, the question was whether in weighing this discovery deadline in an alleged birth injury case, plaintiff could be compelled to give information about when she met with various attorneys and what was discussed. Plaintiff argued such information was protected by attorney-client privilege, while defendant argued it was not and the information was pertinent to when plaintiff knew or reasonably should have known the purported cause of her daughter’s cerebral palsy.
The facts of the case begin in July 2005, when plaintiff gave birth to her daughter.
Then in early 2007, a neurologist diagnosed the girl with cerebral palsy. Cerebral palsy occurs when the brain injury or brain malformation that occurs while the brain is developing – either before, during or after birth. The result is brain damage that affects the child’s muscle control, coordination, tone, reflex, posture and balance. It can also sometimes impact the child’s gross motor skills, fine motor skills and oral motor functioning.
Although it can occur organically, it is a red flag of perinatal brain cell death, which means that events during the birth process led to rupture of the blood vessels that start oxygen to the brain. This type of birth injury is often the result of medical malpractice.
In April 2013, prior to the girl’s 8th birthday, the parents filed a notice to extend by 90 days the statute of limitations for filing a medical malpractice lawsuit against the doctors and hospitals involved in their daughter’s birth. They filed a notice of intent to initiate the lawsuit, which was ultimately filed in November 2013.
The question was whether the statute of limitations will be a bar to this claim, and ultimately, that decision will rest on when plaintiff knew not only of the injury, but also had knowledge there was a reasonable possibility the injury was caused by medical malpractice.
Attorneys for the defense sought information to discover what attorneys plaintiff consulted with about her daughter’s condition, when she consulted with them and why she consulted with them. She did testify in deposition that her current attorney was not the first lawyer with whom she consulted, but then declined to comment further on the basis of attorney-client privilege. Defense moved to compel her to answer all questions related to when she first sought legal counsel, the names of attorneys with whom she consulted and the reasons she first sought out an attorney and any others subsequent.
The trial court granted the motion to compel and plaintiff appealed to the 3rd DCA. The appeals court noted that although a client can’t be compelled to answer questions like, “What did you say or write to the attorney?” he or she can’t refuse to disclose a relevant fact just because it was incorporated into a statement of fact communicated to his or her attorney.
Appeals court noted that the questions the defense sought – the names of attorneys and dates of consultations relevant to plaintiff’s claim regarding her daughter’s condition – are not protected information because that only requires her to disclose the occurrence of a consultation. However, plaintiff can’t be forced to answer “all questions” (as the lower court had ordered), such the specifics of what was discussed.
If your child has been a victim of a Miami birth injury, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Coffey-Garcia v. South Miami Hospital, June 22, 2015, Florida’s 3rd District Court of Appeal
More Blog Entries:
Westphal v. City of St. Petersburg: Florida Supreme Court Rules Limit of Workers’ Comp. Unconstitutional, June 22, 2016, Miami Birth Injury Lawyer Blog