When Does a Birth Defect Claim Accrue?

Florida, like other states, gives injured victims a limited amount of time to sue for injuries suffered. This is true in medical malpractice cases involving children injured during labor and delivery. Florida’s statute of limitations states that a lawsuit must be brought within 2 years of the negligent treatment or within 2 years of the date the incident is discovered or should have been discovered.

A recent Florida appellate court discussed when a medical malpractice claim accrues so that the statute of limitations clock starts ticking.

Facts of the Case

This medical malpractice case stemmed form the delivery of Tavarion Mobley on September 16, 2009, which at first seemed uneventful. Although Tavarion was kept in the hospital due to an alleged infection for 10 days, no one mentioned that he might have suffered a brain injury during delivery.

Shortly after being taken home, however, Tavarion’s parents realized that his development was delayed. They took their son to a series of doctors and eventually met with an attorney on May 27, 2010, who requested medical records to help in his investigation. In November 2012, Tavarion was diagnosed with cerebral palsy, and his parents filed a medical malpractice lawsuit against the doctors and hospital in July 2013.

When a Claim Accrues Under Florida Law

The defendants argued that Tavarion’s parents waited too long to file their lawsuit and argued that the 2-year statute of limitations clock began to run on May 2010, when a lawyer requested medical records. However, the appellate court disagreed.

As the court noted, the statute of limitations clock does not start running simply because a patient becomes aware that they (or their child) has suffered an injury. Instead, the clock begins to run when the party becomes aware that there is a “reasonable possibility” that medical negligence is the cause of the injury.

Here, the fact that the parents realized something was wrong with their son in 2010 was not enough to start the statute of limitations clock. Instead, the clock started to run later, when the parents had a reason to suspect that medical negligence was to blame.

Please Call One of Our Lawyers Today

The Florida statute of limitations is very complicated. It is also unforgiving. We encourage all parents who suspect that their child has suffered a birth injury to reach out to a lawyer as soon as possible.

At Dolan Dobrinsky Rosenblum Bluestein, we can quickly file a lawsuit in an appropriate court to prevent the limitations from running out, but we must hear from you. Please call 305-371-2692 to schedule a free, no-risk consultation with one of our attorneys.