

Michigan Jury Awards $130 Million in Cerebral Palsy Case


The Facts of the Case


cerebral palsy from HIEThe boy was born prematurely, but was initially healthy at birth. He was discharged within 48 hours. However, during his mother’s pregnancy, the child developed hydronephrosis.   (Our firm has spent just a ton of time looking at the issue of kidney injuries from oxygen deprivation at birth.)This is a urologic condition that causes mild swelling of the kidneys. It occurs when urine cannot drain from the kidney to the bladder because of either blockage or obstruction.

Two weeks after the boy was born, he underwent an ultrasound that showed the condition. As a result, he was to undergo a renal scan to measure his kidney function. Doctors also diagnosed him with lupus. However, a physical exam and an ECG showed there was no evidence of any cardiac involvement.

In March 2006, the child underwent the renal scan. This required him to undergo IV as well. Medical technicians struggled to administer it on him. As a result, the child experienced a lack of oxygen and blood to his brain.

The child’s mother tried to report to the medical staff that her son was turning blue. However, technicians did not immediately call a code blue warning. Code blue means an emergency involving cardiac or respiratory arrest. To make matters worse, they failed to give standard chest compressions to help stimulating breathing. This lead to the child sustaining brain damage resulting from “prolonged hypoxic-ischemic insult.” The child manifested symptoms of cerebral palsy soon after.

The civil trial lasted for three weeks in Oakland County Circuit Court. Plaintiff’s attorney noted that while nothing “will ease the suffering of this child… this settlement will alleviate some of the financial burdens from his caretakers.”

However, the hospital maintains that they did nothing wrong. Their official statement read, “We took this case before a jury because we believe the care we delivered was appropriate.” The hospital intends to appeal the case, in the hopes that the jury’s verdict is reduced.

Michigan Birth Injury Statute of Limitations

There are two distinct periods of limitation for medical malpractice actions. The primary limitations period is two years.  The statute of limitations begins to run from the date that plaintiffs claim accrues.

The second limitations period applies in the event that a reasonable person in the plaintiff’s position could not discover the claim during the two-year limitations period.  Under this rule, a victim must file her claim within six months of the time “when, on the basis of objective facts, the plaintiff should have known of a possible cause of action.”

Birth Injury Cases Are Different

There are statutorily defined exceptions to the statute of limitations.  Every state has exceptions to the general rule and, obviously, birth injury cases need an exception.  MCL 600.5851(1) provides an exception for persons “disabled” by infancy.  The general rule of § 5851 provides that persons suffering from the legal disabilities of being a child when their claims accrue, or others claiming on their behalf, “have 1 year after the disability is removed … to bring the action although the period of limitations has run.” MCL 5851(1).

Our course there is an exception to the exception in malpractice cases. The rule is that there is a grace period for medical malpractice plaintiffs whose claims accrue before their eighth birthday:

Except as otherwise provided in subsection (8), if, at the time a claim alleging medical malpractice accrues to a person under § 5838a the person has not reached his or her eighth birthday, a person shall not bring an action based on the claim unless the action is commenced on or before the person’s tenth birthday or within the period of limitations set forth in § 5838a, whichever is later. If at the time a claim alleging malpractice accrues to a person under § 5838a, the person has reached their eighth birthday, he or she is subject to the prior limitations set forth in § 5838a.

So for a birth injury in Michigan has to be filed before the child’s tenth birthday.  This is ridiculous.

It is also worth noting that the parents’ claim is still two years.

Notice Requirement in Michigan Malpractice Cases

Michigan also has a quirky notice requirement before filing a medical malpractice lawsuit.  Prior to commencing a medical malpractice lawsuit in Michigan, a Plaintiff must provide notice to the health facility and/or health professional. MCL 600.2912b mandates that:

a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.

According to MCL 600.5856, by providing written notice of the intent to file a claim, a Plaintiff preserves or tolls the statute of limitations period for her claim.

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