Birth Injuries and Medical Negligence in Florida

photo_5638_20080422.jpgThe birth of a child is often a joyous event for a couple. Unfortunately, there are cases when obstetricians make errors that lead to permanent problems for the child.

Last year, a Florida Court of Appeals considered the birth of a boy who, at his birth, seemed to have limited use of an arm, possibly “shoulder dystocia,” which can be the result of an injury to a particular nerve during a baby’s birth.

Within a few months of the baby’s birth, his mother contacted a plaintiff’s personal injury law firm that focused on medical malpractice cases. The law firm initiated the presuit investigation process that is required. After reviewing the obstetrical records, the law firm told the mother that they didn’t think the doctor had failed to meet the obstetrical standard of care during the delivery. Accordingly, the mother dropped the issue.

The boy experienced years of physical therapy, but after a few years it became likely that therapy was not ever going to totally resolve the issue. His mother consulted a specialist who suggested surgery and who told her that the boy’s injury might have been caused by medical negligence. A couple of years later, she filed suit against the obstetrician and her practice.

The doctor defended on the grounds that the lawsuit was barred by the statute of limitations. She filed two motions to dismiss the action. In the first motion she argued that the complaint was an improper pleading that failed to state a cause of action by claiming the plaintiff did not become aware of a cause of action for malpractice until a few years after the baby’s birth.

The second motion claimed the complaint was a sham since the mother had consulted a medical malpractice firm in 2005, just after the baby was born. The doctor claimed that since she suspected medical practice in 2005, it was false to try to claim she didn’t become aware of the medical negligence until 2009 when a doctor told her the boy’s shoulder dystocia could have been caused by the obstetrician.


The mother submitted a declaration opposing the doctor’s motion. She declared that at the baby’s birth the doctor had told her the arm injury would go away in a few months and that she believed the doctor. She declared that she only learned in 2009 that the injury could have been caused by medical malpractice. The trial court dismissed the lawsuit.

The boy’s mother appealed the dismissal on the basis of three issues. First, she argued that the trial court should not have dismissed the complaint because her baby had not yet turned eight years old (which is relevant to a code section not at play in this case). Second, she argued that in dismissing, the trial court relied on facts outside the complaint. Third, she argued that the trial court shouldn’t have concluded it was a sham pleading without an evidentiary hearing.

The appellate court explained that on a motion to dismiss, the trial court is limited to what information is contained within the complaint. A paragraph of the plaintiff’s complaint stated that she didn’t become aware of the medical malpractice until 2009. The doctor had argued this was an improper legal conclusion.

The trial court was not allowed to consider whether the paragraph was properly pleaded. The dismissal did not state the reasons for the dismissal, but the appellate court explained that public policy tends to allow plaintiffs to amend their pleadings. Not only that, but a “sham pleading” cannot be stricken unless the falsehood is clear and indisputable. It must be a bad faith fiction to be called a “sham.”

In this case, there was not enough evidence to conclude that this pleading had been set up in bad faith, even if the court thought there was little likelihood of success on the merits. The appellate court reversed the dismissal, noting that a full evidentiary hearing was required.

Doctors have a duty to their patients to use the appropriate standard of care. If your baby was injured during delivery, you should consult an attorney knowledgeable about birth injury cases. Call the experienced South Florida birth injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

More Blogs
Florida Appellate Court Reviews Issue of Privacy in Auto Accident Case, South Florida Personal Injury Lawyers Blog, May 10, 2013
Florida Appellate Court Rules on Issue of Jury Selection, South Florida Personal Injury Lawyers Blog, May 8, 2013

Contact Information