State Laws Set Strict Time Limits for Filing Birth Injury Claims and Lawsuits

ClockState law establishes deadlines for filing lawsuits, known as statutes of limitations. Some states also require that a plaintiff give notice to a defendant prior to filing suit. Failure to meet these deadlines could result in dismissal of a claim. The deadlines may have some flexibility, such as in situations where a claimant could not have learned of an injury until some time had passed. An appellate court in New York ruled against a plaintiff earlier this year in Abad v. New York City Health and Hospitals Corp. The plaintiff was claiming birth injuries caused by the defendant’s negligence, but the court found that the plaintiff missed the deadline by waiting until seven years after the claim accrued to serve formal notice on the defendant.

According to the court, the plaintiff’s claim for injuries accrued when the hospital discharged him on September 13, 2002, six days after he was born. An expert witness for the plaintiff stated that the fetus was deprived of oxygen during labor. After a placental abruption and the detection of anemia, the plaintiff was placed in the neonatal intensive care unit (NICU). In June 2004, when the plaintiff was almost two years old, he was diagnosed with pervasive development disorders (PDD). This is a broad category of conditions involving different forms of delayed development, including autism and Asperger’s syndrome.

Many states require a notice of claim, which simply identifies the alleged injury and describes the claim, before a plaintiff can file a lawsuit. Maryland law requires a different procedure to initiate a medical malpractice claim. Under New York City law, the plaintiff had ninety days to serve notice of the claim on the defendant. The court states that this deadline passed on December 14, 2002. The plaintiff and his mother served a notice of claim on the hospital in May 2005, and they filed suit for medical malpractice in January 2006.

In October 2009, more than seven years after the date the claim accrued, the plaintiff filed a motion asking the court to deem the 2005 notice timely served, known as a motion nunc pro tunc. The motion basically asked the court to use its discretion to allow the case to proceed despite the missed deadline. The court denied the motion and dismissed the case, and the plaintiff appealed.

The question before the appellate court was whether the defendant had adequate notice of the plaintiff’s claim. If enough evidence of an injury existed within the defendant’s own records, the court could have concluded that the defendant knew, or should have known, of the plaintiff’s claim even before the plaintiff served it with notice. The appellate court found, however, that the defendant’s records did not show clear evidence of a “hypoxic event,” that the plaintiff responded well to treatment in the NICU, and that he was deemed “clinically stable” prior to discharge. The court therefore affirmed the lower court’s dismissal, holding that the delay in serving notice of the claim was prejudicial to the defendant. The plaintiff would have been able to present evidence linking his time in the hospital to his injuries, but timely notice was required first.

The birth injury attorneys at Wais, Vogelstein, Forman & Offutt have over 100 years of collective experience pursuing claims for injuries caused by the negligence of doctors and other medical professionals in Maryland and Washington, D.C. To schedule a free and confidential consultation with a knowledgeable advocate, please contact us today online, at (410) 567-0800.

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