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.

Additional Resources:

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

The legislative action was named for and championed by the family of Raechel and Jacqueline Houck, sisters, 20 and 24, killed in a fiery crash in 2004 when their rental car burst into flames after a striking a semi-truck following an apparent steering hose leak. The vehicle had been recalled for this very same reason prior to the crash, but the rental car company nonetheless continued to rent out the car. In fact, the company rented out the car four times since the recall, the Houck sisters being the fourth.

At the wrongful death lawsuit trial brought by their parents, a manager for the shop in California that rented the car testified that the corporate philosophy of the rental car company was always to “keep booking,” because there was never any assurance of when the vehicle might be returned. But then the company would run short on vehicles. If all that were left in the lot were recalled vehicles, managers were instructed to rent those out too. 

“It was a given,” he testified, even when the rental car company was aware of a recall via a “priority alert” that appeared on screen at rental officers.

Now, it is no longer a given with this amendment to the Fixing America’s Surface Transportation (FAST) Act of 2015.

The new law, as explained by officials with the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), will ensure that when a family picks up a car for rental on vacation, they have every right to expect it is free from any known safety defect. The law also extends the NHTSA’s recall powers to cover rental car companies, something it did not have in the past. That gives the agency the authority to investigate reported violations of the statute and to punish those who break the rules.

First introduced in 2011, Congress took many passes before finally making it law last year. President Obama signed it into law in December and it’s now formally in effect.

It’s imperative that every vehicle that is recalled – new, used, rented or leased – gets repaired quickly. Rental car companies often operate enormous fleets. Our Miami car accident lawyers know the actions of these large companies affect not only the safety and well-being of their customers, but also of everyone else who shares the road with them.

To give you an example of the scope of the problem, just in 2014 alone, there were almost 900 automotive recalls that affected more than 50 million vehicles in the U.S.

As for the Houck’s wrongful death lawsuit, it was an arduous legal battle, but the company ultimately conceded it had been negligent and agreed to pay a $15 million settlement.

When their mother started advocating for the passage of the FAST Act provision, she initiated a Change.org petition that pressed Enterprise (the defendant in the Houck lawsuit) to forego its opposition to the rental car act. That petition collected more than 100,000 signatures. Ultimately, Enterprise, Hertz, Avis, Dollar, Thrifty and National all agreed not to rent out any recall cars. Now, they don’t have a choice.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Years after tragedy, mother claims victory in new rental car protections, June 1, 2016, By Randy Kreider, ABC News

More Blog Entries:

Coffey-Garcia v. South Miami Hospital – Florida Birth Injury Lawsuit, July 4, 2016, Miami Injury Lawyer Blog

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.

Additional Resources:

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