Blanche v. U.S. – Erb’s Palsy Lawsuit Hits Statutory Wall

Per N.C. Gen. Stat. 1-15(c) and N.C. Gen. Stat. 1-52(16), the statute of limitations on medical malpractice lawsuits in North Carolina is generally three years, though in certain exceptional circumstances, it could be 10 years. Those timelines are from the date the injury occurs or from the date the injury is discovered (or could reasonably have been discovered) or the cause of injury became known. pregnantbaby

However, plaintiffs need to be aware that the rules are different if the case is being filed under the Federal Tort Claims Act. Why would a medical malpractice case be filed in federal court? The answer has to do with how hospitals and other facilities are funded. If they receive federal grant funding from the U.S. Public Health Services program, the hospital and its programs would fall under the umbrella of FTCA. This means that instead of the three years North Carolina plaintiffs would normally have to file, they’ll only get two years.

In the recent case of Blanche v. U.S., this statutory timeline became the primary roadblock between plaintiff, whose daughter was diagnosed with Erb’s Palsy after suffering a birth injury, and compensation for that injury. 

Erb’s palsy, if you aren’t familiar, is paralysis of the arm caused by injury to the upper group of the arm’s primary nerves. It’s a type of brachial plexus palsy, and it’s often caused during birth when an infant’s neck is stretched to one side during an especially arduous delivery. About 1 or 2 of every 1,000 babies born are diagnosed with this condition.

In Blanche, plaintiff entered the emergency room in September 2008. At the time, she was carrying a nearly 12-pound baby, which is very large. There was no indication the emergency room doctor – who had not provided her prenatal care – checked to see how large the baby was before deciding he was going to induce her labor.

Plaintiff testified she was very scared, and when it came time to push, the doctor had her push in a variety of different positions. The baby was stuck. Finally, plaintiff said she heard a “popping sound,” and the girl was delivered.

But she was rushed right away to the Neonatal Intensive Care Unit. Nurses assured her the baby was Ok. When she went to see the child, the girl’s arm was in a splint, and a nurse told her the girl sustained an injury during birth. Plaintiff also said at one point the doctor “apologized” to her for the difficult birth, though she couldn’t remember his exact words. Before the little girl left the hospital, she was diagnosed with Erb’s Palsy.

When she took the baby home, friends and family asked about the arm splint. When she told them what it was for, they suggested she contact a lawyer.

She did meet with one, but decided not to hire him. Another year passed, and she met with a different attorney after hearing a radio ad referring to her daughter’s condition. This time, she hired the attorney and her counsel requested medical records from the hospital, which were received within a few months.

But counsel waited more than a year to file the medical malpractice lawsuit against the doctor and the hospital, and then did so in state court. When the matter was removed to federal court – due to the federal grant funding hospital received – defendant argued the case was time-barred because of the two-year statute of limitations on federal cases.

Plaintiff argued the statute of limitations should be tolled because she didn’t understand right away what had caused her daughter’s injuries. However, the lower court and later the U.S. Court of Appeals for the Seventh Circuit disagreed, finding these claims accrued shortly after the girl’s birth. The fact that she had a difficult delivery, the child had to be rushed away immediately, the doctor apologized, the mother was told her daughter had suffered a birth injury and had to leave the hospital with her arm in a splint all suggests plaintiff had enough information shortly after the birth to reasonably inquire about whether the doctor’s actions caused the injury by delivering the baby vaginally rather than through a C-section.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Blanche v. U.S., Feb. 2, 2016, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Easterling v. Kendall – Medical Malpractice for Failure to Diagnose, Feb. 1, 2016, Charlotte Injury Lawyer Blog

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