U.S. Court of Appeals Affirms Summary Judgment for Government in Federal Tort Claim Act in Brachial Plexus Birth Injury

In a Federal Tort Claims Act lawsuit alleging that the plaintiff’s child sustained permanent injuries to the arm during birth, the district court judge found that the lawsuit was filed after the applicable two-year limitations.

The records show that (1) the doctor told the plaintiff mother that the delivery plan called for her to receive a c-section, but on the day of delivery, a physician delivered the child vaginally; (2) according to the plaintiff, delivery was traumatic in that the child “got stuck” on the way out, and that once the child was born, it appeared that the baby could not move his left arm; (3) shortly after the baby’s birth, the mother raised concerns about the child’s left arm but eventually retained counsel who did not file the instant lawsuit until three years after the date of his birth.

Under the discovery rule, a lawsuit accrued shortly after the child’s birth, since it was at that time that the mother of the child discovered the cause of the baby’s injuries.

The district court judge rejected the plaintiff’s claim that the lawsuit did not accrue until the day the mother retained counsel since (1) the mother did not meet specific information showing that the doctor caused the child’s injuries; and (2) the mother had enough information shortly after she gave birth to the baby to prompt her to inquire whether the manner of delivery was a cause of the baby’s injury.

The fact that the mother may not have been initially aware that the doctor was a government employee did not give rise to a different result. Under the Federal Tort Claim Act, among other hurdles that have to be accomplished, the federal statute of limitation of a government employee is two years regardless of the age of the plaintiff being a child.

In this case, there was a dissent filed.

P.W. v. United States, No. 20-1142 (March 5, 2021).

Kreisman Law Offices has been handling birth trauma injury lawsuits, brachial plexus injury lawsuits, traumatic brain injury cases, hypoxic ischemic encephalopathy injury lawsuits and wrongful death cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Naperville, New Lenox, Lemont, Long Grove, Arlington Heights, Hoffman Estates, Orland Park, Palatine, Palos Hills, Park Ridge, River Grove, Inverness, Worth, Blue Island, Chicago (Sauganash, South Shore, West Loop, Greek Town, Little Italy, Old Town, Lincoln Square, West Rogers Park, Albany Park, Uptown, Andersonville, Bronzeville), Hillside, Homewood, Country Club Hills, Countryside, Bannockburn, Barrington, Winnetka and Glenview, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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