Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)
Here, Plaintiff is alleging that as a result of Defendant’s negligence, he suffered “Shoulder Dystocia and Brachial Plexus Palsy” while being delivered at ABC Hospital on July 26, 2000. Specifically, Plaintiff’s Complaint alleges negligence including negligently failing to conform to the standard of care with respect to the prenatal care and treatment to plaintiff in utero and to his mother, and with respect to the use of all reasonably safe medical alternatives of obstetric procedures during labor and delivery of plaintiff. Plaintiff is clearly claiming birth-related injuries.
Since Code of Civil Procedure § 340.4 was enacted in 1994, more than ten years after Code of Civil Procedure § 340.5 was enacted, and because Code of Civil Procedure § 340.4 more particularly pertains to birth related injuries caused by medical malpractice, the former statute should override the latter. Therefore, and according to Code of Civil Procedure §340.4, Plaintiffs opportunity to commence this action expired on July 26, 2007.
The Supreme Court has held that when the plaintiff is a minor, it is the knowledge or lack thereof of the parents which determines when the cause of action accrues . Whitfield v. Roth (1974) 10 Cal, 3d 874, 885. Here, based upon the nature of the alleged injuries, Plaintiff, by and through his parents and legal guardians, would have had knowledge of the claimed injury long before the Complaint was filed. Infants with Brachial Plexus Palsy are usually identified in the newborn nursery during the first week of life. The most obvious feature of the disorder is lack of mobility in the arm. Arguably, as such, Plaintiff’s parents would have had knowledge of Plaintiff’s injury over eight years prior to the filing of their Complaint, and before the tolling of the statute of limitations pursuant to Code of Civil Procedure § 340.4.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Nevertheless, Plaintiff did not file his Complaint until October 22, 2008, more than eight years after the alleged negligence and after the tolling of the statute of limitations on Plaintiff’s claim. Furthermore, Plaintiff’s Complaint does not contain any allegations of delayed discovery nor does it indicate allegations of fraud, intentional concealment or the presence of a foreign body. Plaintiff has not alleged any facts which would toll the statute of limitation period. For the reasons stated above, Dr. Lee respectfully requests that the Court find Plaintiff’s Complaint to be time-barred.
Moreover, even if Plaintiff’s Complaint were timely filed, Plaintiff cannot provide evidence to support his negligence claim.
Conclusion
Defendant, David Lee, M.D., respectfully requests that this Court enter summary judgment in his favor and against plaintiff, and for his costs of suit herein. In the alternative, Defendant respectfully requests that this Court summarily adjudicate Plaintiffs Complaint as it is barred by the statute of limitations.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.