Many parents who know the devastation caused by a birth injury. They have come face-to-face with how profoundly different their life is than the one they imagined before their child was born. They mourn for all the experiences their child will not be able to have.
And then, they take action. Pursuing a birth injury lawsuit in Miami is a tough endeavor. These are often complex cases and the stakes are high. What parents should also know is that they need to take action as quickly as possible, or risk the chance that the claim will be time-barred. Some may think it’s wise to wait and see if the child’s condition worsens, as this might maximize the damages. However, a good attorney can help you outline the case for future damages. Plus, if a child later dies as a result of those birth injuries, that creates a completely new cause of action, separate from the personal injury claim.
This was the case recently in Maryland with the case of Spangler v. McQuitty. Plaintiffs secured a $5 million judgment against his doctors after alleging severe birth injuries caused by medical negligence. Later, when the child died of these injuries, his parents once again sued the doctors and hospital. They asserted the very same facts of the personal injury lawsuit. Defendants argued this was against the rules because the case on those facts had already been decided. But plaintiffs ultimately won out with the argument that wrongful death creates a new and separate cause of action.
Where plaintiffs have to be careful – particularly in settlement agreements – is that often defendants will demand a release of any future liability. That could undercut the plaintiff’s ability to pursue additional action, even if they otherwise would have had that right.
In this case, plaintiffs allege defendants failed to obtain the child’s mother’s informed consent for treatment when she was pregnant. As a result, she suffered complete placental abruption, which resulted in severe injuries to their son when he was born in 1995. He was diagnosed with severe cerebral palsy.
Plaintiffs sued the doctor and hospital and obtained a judgment for $13 million – which included $8 million for future medical expenses – but a remittitur was granted and that damage award was ultimately reduced to $5 million.
Then in May 2012, plaintiffs filed a wrongful death action against the same defendants under the state’s wrongful death statute. Defendants filed a motion to dismiss, arguing the boy no longer had a right to bring a claim against the defendants at the time of his death.
Plaintiffs appealed. While that case was pending, the state’s highest court issued an opinion in Mummert v. Alizadeh, in which a widow and her children sued her husband’s doctors, alleging failure to timely diagnosis his colorectal cancer. The doctor filed a motion to dismiss, arguing the three-year statute of limitations for wrongful death had expired relative to the patient’s personal injury action. That motion was granted by the lower court, but the state high court reversed. In reversing, the court wrote that the legislature did not intend to define “wrongful act” so as to make it so a wrongful death claim was contingent on decedent’s ability to file a claim in a timely manner before his or her death. Therefore, the statute of limitations for tort claims against health care providers in cases of alleged medical malpractice doesn’t apply to a claim of wrongful death. That is, a new and independent claim is created.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Spangler v. McQuitty, July 12, 2016, Maryland Court of Appeals
More Blog Entries:
Coffey-Garcia v. South Miami Hospital – Florida Birth Injury Lawsuit, July 4, 2016, Miami Birth Injury Lawyer Blog