If you are injured or a loved one died as a result of someone else’s negligence, you may have a legitimate claim for damages. However, you must be mindful of the fact that you only have so long to pursue it.
How much time you have depends on:
- The kind of claim your filing;
- The identify of the defendant;
- If you discovered the injury or its source some time after it happened.
If the claim is being filed in a state court in Florida, you generally have four years to file. However, in that same court, if your claim is for medical malpractice or wrongful death, you have two years.
If your claim is one against the federal government (or an organization that relies on federal money), you likely only have two years, regardless of the type of claim.
There may be some exceptions or grounds on which to “toll” or extend the time limits, but you will need to make a very strong argument.
Recently, in the case of Blanche v. U.S., a woman whose baby suffers from Erb’s palsy due to a birth injury tried to sue a county community health center, which receives funding from the U.S. Public Health Service. For that reason, the Federal Tort Claims Act applies.
However, she brought her claim more than two years after the statutory deadline. Ultimately, the U.S. Court of Appeals for the Seventh Circuit dismissed her lawsuit for this reason, rejecting her arguments for why the timeline should be tolled.
According to court records, plaintiff went to the hospital emergency room in September 2008, suffering from abdominal pain. She was transferred to labor and delivery and the doctor chose to induce her. During delivery, the baby girl became stuck in the birth canal. The doctor had the woman continue to push as he moved her into different positions. Eventually, plaintiff says she heard a “popping sound” and the child was delivered.
The child, who weighed nearly 12 pounds, was significantly larger than the average child at birth. She was immediately taken away by doctors, and plaintiff later saw her in the neonatal intensive care center, her arm in a splint. A nurse explained the baby girl had sustained an injury during birth.
She also said the doctor “apologized” to her for the difficult birth, though she could not remember his exact words.
Before the baby girl left the hospital, she was diagnosed with Erb’s Palsy, which is characterized by weakness of the arm resulting from damage to the nerves in the shoulder. The mother said although she knew about the diagnosis, she didn’t realize this was going to affect her child’s use of her right hand until more than a year after the child was born.
Still, she met with a lawyer weeks after the child’s birth after friends asked her if she had retained a lawyer. However, she did not hire this attorney because she did not feel he was “good.” She didn’t speak with another lawyer for almost another year, after hearing a radio advertisement. She hired that lawyer in August 2009. Within two months, the attorney sent a request for medical records, and by February 2010, those records were received. However, it took another year for the attorney to file that lawsuit.
The claim alleged the prenatal doctor should have known the child was too big and the delivery doctor should have proceeded with a C-section birth instead of allowing the mother to deliver vaginally.
The claim was filed in state court, but later moved to federal court at defense request on grounds the doctor and other hospital employees in fact worked for the U.S. government under FTCA. Defendants then moved for summary judgment on grounds the two-year statute of limitations had expired.
Trial court agreed and plaintiff appealed. But the appellate court affirmed, despite plaintiff’s arguments that she didn’t realize at first the injuries were caused by the doctor. It is true that the statute of limitations clock doesn’t start ticking until a patient knows – or should have known – about the injury or its cause. Facts that worked against her in this regard:
- The doctor’s “apology” in the hospital;
- The nurse’s statement to her that the child had suffered a “birth injury“;
- The fact that she met with a lawyer weeks after the child’s birth.
The court ruled that regardless of plaintiff’s subjective beliefs, a reasonable person under the circumstances would have had enough information to inquire further about whether the doctor caused the child’s injuries. Therefore, the statute of limitations started running “shortly after” the child’s birth, and the claim was time-barred.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Blanche v. U.S., Feb. 2, 2016, U.S. Court of Appeals for the Seventh Circuit
More Blog Entries:
Perez-Rios v. The Graham Companies – Florida Slip-and-Fall Lawsuit, Jan. 31, 2016, Fort Lauderdale Medical Malpractice Lawyer Blog