Birth Injury Case - 14 years later

[Dinesh]

Jurisdiction

Ohio

I am looking to sue my obstetrician for a birth injury that happened in 2007 in Ohio. The kid is brain damaged and we have evidence in terms of brain MRI scans and other evidence.
I believe the lawsuit needs to be filed in Federal court as it is outside of the 8 years I believe ohio allows to file such cases. I have since moved to Texas. I am thinking I still need to file in the federal court in Ohio. Is that correct.
I will need a lawyer that can take it up on contingency. It is a straight forward case of malpactice and I know I have collected and have more than enough evidence to win the case and I am capable of even arguing it myself. Are there lawyers out there that would fight this on a fee basis if I cant find one that can take it up on contingency? Appreciate it if I could find answers to where the case is to be filed, Jurisdiction, statute of limitations etc.

 

[Redemptionman]

I am looking to sue my obstetrician for a birth injury that happened in 2007 in Ohio. The kid is brain damaged and we have evidence in terms of brain MRI scans and other evidence.
I believe the lawsuit needs to be filed in Federal court as it is outside of the 8 years I believe ohio allows to file such cases. I have since moved to Texas. I am thinking I still need to file in the federal court in Ohio. Is that correct.
I will need a lawyer that can take it up on contingency. It is a straight forward case of malpactice and I know I have collected and have more than enough evidence to win the case and I am capable of even arguing it myself. Are there lawyers out there that would fight this on a fee basis if I cant find one that can take it up on contingency? Appreciate it if I could find answers to where the case is to be filed, Jurisdiction, statute of limitations etc.

Since you obviously do not know about these cases then I certainly would shop it around as you would only want to pursue this if you could get an attorney to take it on a contingency basis. Roughly speaking with expert testimony and the necessary medical expert witnesses to prosecute such a case would require many 100s of thousands of dollars. If I am you then I would want the case to be held in a local circuit court jurisdiction and not federal as federal juries are a lot more likely to award you less damages.

You will need an attorney and these are complex cases so you do not want to go it alone. I would start with the local Best of the Best personal injury lawyers for your area and go from there.

Very few of these cases go to trial and your opponents will have nothing but the best of the best attorneys representing them. I wish you the best with it.

 

[Zigner]

I'm not sure what 8 year limit you are referring to. From what I've read, if your child was so injured that he will be incompetent ("of unsound mind"), then the limitation doesn't start running until he is no longer incompetent. That also applies to the claim that you, as the parent/caregiver, may have against the doctor for the additional expenditures that you have incurred. You will want to have all of the documents, records, etc., reviewed by an Ohio attorney.

Section 2305.16 - Ohio Revised Code | Ohio Laws

 

[Zigner]

I would start with the local Best of the Best personal injury lawyers for your area and go from there.

You mean in Ohio, right?

 

[army judge]

I am looking to sue my obstetrician for a birth injury that happened in 2007 in Ohio. The kid is brain damaged and we have evidence in terms of brain MRI scans and other evidence.

The following information is NOT legal advice.
The following information is supplied for INFORMATIONAL purposes ONLY.
I STRONGLY suggest you speak to at least THREE licensed attorneys in Ohio who engage in the legal profession regarding the area of "medical malpractice".

Ohio's Statute of Repose for MedMal lawsuits

If you're considering filing a medical malpractice claim in Ohio, it's important to find the right lawyer to handle all of the complex legal issues involved in this type of case. But it's also helpful for you to understand the basic process and when you need to take action. This article explains the most important Ohio laws and rules that could affect your case, including:

the deadlines for filing medical malpractice lawsuits
special procedural requirements for these lawsuits
legal limits on the amount of compensation you might receive, and
rules on apportioning liability in cases of shared fault for injuries.
Ohio's Statute of Limitations for Medical Malpractice Lawsuits
A statute of limitations is a law that sets a time limit on your right to file a lawsuit in court. In Ohio, the general statute of limitations for medical malpractice cases is one year after the alleged medical error (the "injury"). Ohio courts have held that the time period begins when you discover the injury (or reasonably should have discovered it) or when your relationship with the medical provider ends, whichever occurs later.

The one-year time period might be extended if, before the deadline, you send a formal notice to the prospective defendant (by certified mail, with a return receipt requested) that you're considering a medical malpractice suit against that health care provider. Once the provider receives the notice, you have up to 180 days to file the lawsuit.

Ohio also sets an outside limit of four years for filing medical malpractice cases (known as a "statute of repose"), regardless of when you discovered the injury, sent the notice, or ended the doctor-patient relationship.

Still, there are exceptions to that hard four-year deadline:

If you could not have reasonably discovered the injury within three years after it happened, but you do discover it before the end of the four-year period, you may file the lawsuit within one year after the actual discovery date.

If your injury is related to a foreign object that was left in your body during a medical procedure, you may file suit up to one year after you discover or reasonably should've discovered the foreign object, even if the four-year period has expired.

The medical malpractice statute of limitations is tolled—meaning that the time period for filing suit is paused—while the plaintiff (the injured patient) is still a child or "of unsound mind."
(Ohio Rev. Code § 2305.113 (2021).)

"Affidavit of Merit" and Expert Requirements for Ohio Medical Malpractice Cases
When you file a medical malpractice lawsuit in Ohio, you must attach at least one "affidavit of merit" from an expert medical witness who is licensed to practice medicine in the same (or a similar) specialty as the defendant. The affidavit must include statements confirming that the expert has reviewed all of the relevant medical records, is familiar with the applicable standard of care, and believes that the defendant health care provider(s) breached the standard of care and caused injury to you.

If you can't provide the affidavit at the same time that you file your lawsuit, you may file a motion requesting more time to file the affidavit. The judge will grant your request (usually for up to 90 days) if you have a good reason for the delay. (Ohio Rules of Civil Procedure, rule 10; Ohio Evidence Rules, rules 601, 702 (2021).)

Medical Malpractice Damage Caps in Ohio
If you win your medical malpractice case, you could receive compensation for two types of "damages," or losses that you've experienced as a result of the medical error:

economic damages, such as lost income, reduced ability to earn, or the cost of medical treatment needed because of the medical error; and
noneconomic damages like pain and suffering, loss of consortium, or emotional distress.
There's no limit on the amount of compensation you can receive for your economic damages in Ohio medical malpractice cases, but state law does limit noneconomic damages: $250,000 or three times your economic damages (whichever is greater), up to a maximum of $350,000 for each plaintiff (or a total of $500,000 in cases involving multiple plaintiffs).

Ohio's limit on noneconomic damages is higher in cases where the malpractice led to loss of a limb or organ system, permanent and substantial deformity, or permanent and severe injuries that prevent the plaintiffs from taking care of themselves independently. In these cases, the cap is $500,000 per plaintiff or $1 million total in cases with multiple plaintiffs. (Ohio Rev. Code § 2323.43 (2021).)

Ohio Medical Malpractice Laws & Statute of Limitations

 

[Zigner]

The statute of repose does not apply to minors or incompetent individuals:

Section 2305.113 - Ohio Revised Code | Ohio Laws


(C) Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of the Revised Code, and except as provided in division (D) of this section, both of the following apply:

(1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.

(2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.

(emphasis added)

 

[Zigner]

As a side note: I find it strange that so many law firm web pages neglect to mention that the 4-year statute of repose doesn't apply to minors.

 

[army judge]

The statute of repose does not apply to minors or incompetent individuals:

I suggest you reread the statute.

How much time do I have to file a child's medical malpractice claim?

A medical malpractice action must be commenced within one year after the cause of action accrues. However, if, at the time the injury occurs, the claimant is a minor or of unsound mind, the one-year statutes are tolled until the disability is removed (the minor reaches 18) Ohio Rev. Code Ann. § 2305.16.

However, with the passage of time it can be more difficult to pursue the case as memories can fade or witnesses may have moved away. We recommend contacting our office right away for a free consultation to make sure you understand all of your rights and to have all of your questions answered.

This Ohio lawyer expounds further upon the matter:

Ohio Medical Malpractice Attorney - FAQ - The O'Keefe Firm - Dayton

 

[Redemptionman]

^ of course best of the best personal injury/ malpractice attorneys in Ohio.

The law changes have resulted in more by passes around which cases can be filed outside the traditional tolling of statue of limitations. Which has incorporated language to include minors or from when the damage was actually discovered.

 

[Zigner]

I suggest you reread the statute.

How much time do I have to file a child's medical malpractice claim?

A medical malpractice action must be commenced within one year after the cause of action accrues. However, if, at the time the injury occurs, the claimant is a minor or of unsound mind, the one-year statutes are tolled until the disability is removed (the minor reaches 18) Ohio Rev. Code Ann. § 2305.16.

However, with the passage of time it can be more difficult to pursue the case as memories can fade or witnesses may have moved away. We recommend contacting our office right away for a free consultation to make sure you understand all of your rights and to have all of your questions answered.

This Ohio lawyer expounds further upon the matter:

Ohio Medical Malpractice Attorney - FAQ - The O'Keefe Firm - Dayton

I don't see what you're getting at. That says exactly what I said: However, if, at the time the injury occurs, the claimant is a minor or of unsound mind, the one-year statutes are tolled until the disability is removed (the minor reaches 18)

I agree that the longer one waits, the more difficult a case like this will be, but the statute of limitations is tolled until a year after the child turns 18, or, for the lifetime of the child if the child never gains legal competency (i.e. is no longer of "unsound mind").

 

[zddoodah]

I believe the lawsuit needs to be filed in Federal court as it is outside of the 8 years I believe ohio allows to file such cases.

Unless you have a cause of action that arises under federal law, the state statute of limitations will apply. Filing in federal court won't change that. Medical malpractice is a cause of action that arises under state law.

I am thinking I still need to file in the federal court in Ohio.

If the defendants are all located in Ohio, then yes, you'd need to sue in Ohio.

Are there lawyers out there that would fight this on a fee basis if I cant find one that can take it up on contingency?

No one here will be able to speak intelligently about what lawyers in Ohio will and won't do (to the best of my knowledge, no one here is in Ohio). Medical malpractice cases are typically handled on contingency.

 

[army judge]

The following link MIGHT provide you an opportunity to initiate the litigation you seek.

I am NOT recommending or endorsing anyone or anything.

I am simply providing you with INFORMATION.

You must decide what you do:

Birth Injury Lawyer | Cerebral Palsy, Erb's Palsy, Infant Brain Damage

 

[Dinesh]

Wow! So I have until 18 years even to do this in Ohio. That is great to hear! Interesting thoughts on the expenses for the experts. Is it possible to ask the birth hospital to declare in writing what their standard of care is when it comes to the situation. I know for a fact that the Obstetrician went against norms established by the hospital. Would it have to be ordered by the court or can I demand that from the hospital outside of court ? The nurses were unhappy with the doctors pursuit of labor induction. But this was 2007 pre-dating ACA and nurses were not allowed to give medical advice at that time.

 

[Zigner]

Wow! So I have until 18 years even to do this in Ohio. That is great to hear! Interesting thoughts on the expenses for the experts.

Speak to an attorney for specific advice about your specific situation. Don't take anything you "hear" on the internet as anything other than random people giving armchair quarterback advice.

Is it possible to ask the birth hospital to declare in writing what their standard of care is when it comes to the situation.

Sure, you can ask. They won't do that. They aren't going to volunteer that might expose them to liability of any kind, which such a statement would do.

I know for a fact that the Obstetrician went against norms established by the hospital.

That's not what you need to prove, though. You have to prove that the doctor was actually "negligent" - in other words, that what he did was against the standard of care in the industry (not just at the hospital). If it was not against the standard of care in the industry, and if the injuries caused are known risks even within that standard of care, then you may have no case at all.

Would it have to be ordered by the court or can I demand that from the hospital outside of court ?

The court isn't going to order the hospital to provide you with a written statement such as you are asking for.

Are your son's injuries so severe that he will be unable to care for himself as an adult? In other words, is it expected that you will need to become his court-appointed legal guardian once he turns 18?

 

[Dinesh]

Speak to an attorney for specific advice about your specific situation. Don't take anything you "hear" on the internet as anything other than random people giving armchair quarterback advice.
Sure, you can ask. They won't do that. They aren't going to volunteer that might expose them to liability of any kind, which such a statement would do.
That's not what you need to prove, though. You have to prove that the doctor was actually "negligent" - in other words, that what he did was against the standard of care in the industry (not just at the hospital). If it was not against the standard of care in the industry, and if the injuries caused are known risks even within that standard of care, then you may have no case at all.
The court isn't going to order the hospital to provide you with a written statement such as you are asking for.

Are your son's injuries so severe that he will be unable to care for himself as an adult? In other words, is it expected that you will need to become his court-appointed legal guardian once he turns 18?

Yes, he is non-verbal and has the maturity of a 2-3 year old at age 14. He also has other abnormal behaviours. So it is pretty serious. He will never be able to work and make a living, or drive his own car or have the skills for independent living. He has multiple foci of scars in his brain where the MRI radiologist is clear it was from white matter damage occuring from white matter insult. The drug used by the doctor warns against the possibility in its label, which is why most hospitals have their own protocols to avoid such occurence. Would the hospital be liable for allowing such malpractice occurence against their own protocols? Someone is clearly culpable, between the doctor, hospital or the drug maker.

 

[Dinesh]

Also, The ACOG - American Congress of Obstetrics and Gynecology, have recommended that every hospital come up with their protocols regarding when to stop labor induction and do a C-section. Plus the Pitocin drug label clearly states the contra-indication criteria on its labeling. Not sure if I would call it negligent, she was more "ignorant" of these boundary conditions.

 

[zddoodah]

Is it possible to ask the birth hospital to declare in writing what their standard of care is when it comes to the situation.

It is possible to ask anything of anyone. If you sue, you can ask questions as part of the discovery process, and that's the only way you're likely to get an answer to this sort of question.

 

[Zigner]

Really - you need to speak to an attorney. On its face, it appears that you may have a valid case, but all facts should be reviewed.

I wish you and your son the best of luck in your journey ahead.

One last thing: You stated "...I know I have collected and have more than enough evidence to win the case and I am capable of even arguing it myself". You should not even entertain the idea of doing this yourself. You need competent representation if you wish to have any hope of prevailing.

 

[Redemptionman]

and as I thought Ohio has a cap on malpractice suits in relation to pain and suffering, note this does not affect your economic damage recovery but does seriously hinder your ability to get all damages.

Damage Caps on Medical Malpractice Claims | Ohio Medical Malpractice Lawyer

I wonder since these changes if more federal criminal charges will come for corporations to deal with since they are NOW individuals and all. With feelings and such.

 

[Ohiogal]

Please do get a consult with an attorney in Ohio. Yes I am an attorney in Ohio HOWEVER I do not do this type of law and speaking in generalities. You can find a medical malpractice attorney to speak to by calling the county bar association where the hospital is located. They should be able to make a referral for you to talk to someone. You can also look up the attorney that they recommend on the supreme court of Ohio website and see if the attorney has any disciplinary history.