I gave birth to my son two and one-half years ago in a Tennessee hospital. The delivery was very traumatic. My son was blue when he was born. He was resuscitated but spent months in NICU. He is very far behind developmentally and now I have been told that he suffered a brain injury during delivery from lack of oxygen. Is it too late to have a lawyer investigate to see whether my son has a malpractice case?
No, but your son’s deadline is approaching very fast. Under current law if your son was injured by negligence during his birth appropriate legal action against the health care providers who caused the injury within three years of the date of the negligence. The first step in this process is giving formal notice of the claim to the responsible health care providers. Do not attempt to do this on your own – it is more complicated than sending a letter or calling the providers on the phone. You will need the help of a lawyer to get this done.
More importantly, you need the help of a lawyer to investigate this matter. Investigating birth-injury cases is a time-consuming effort, and thus I urge you to contact a competent lawyer as soon as possible.
The three- year deadline is an absolute deadline. That is, unless all health care providers who caused you son’s injury (if investigation reveals that the injury was caused by negligence) have appropriate legal action taken against them within three years of the date of the negligence your son’s rights will be lost. There are two exceptions to this absolute deadline. One is not applicable to the facts as you have stated them because it requires that a foreign object be left in the patient that results in injury. The other exception is fraudulent concealment of the claim by the health care providers. This is an extremely complicated area of the law and you need the advice of a lawyer to determine if this exception applies to the facts of your case.
Do not, under any circumstances, assume that "fraudulent concealment" applies to your set of facts unless a competent lawyer advises you that it does. Thus, you should assume that your child’s rights, if any, will be lost three years after the date of the medical error and thus take prompt action to determine whether there is a valid lawsuit under the facts.
John Day represents personal injury victims and families of wrongful death victims. He is board-certified as a civil trial specialist by the National Board of Trial Advocacy and, in fact, served as President of the organization. He is an elected member of the prestigious American College of Trial Lawyers. His book, "Day on Torts: Leading Cases in Tennessee Tort Law," is used by judges and lawyers across Tennessee to further their understanding of personal injury and wrongful death law in Tennessee. In 2009, Best Lawyers named John "Best Personal Injury Lawyer" for Nashville; he was the first recipient of that award. Best Lawyers also named John as "Best Medical Malpractice Lawyer in Nashville" for 2010. John does not charge for an initial consultation and accepts personal injury and wrongful death cases on a contingent fee basis. You can reach him by telephone at 615.742.4880 or by email by clicking here.