Ask The Judge
Dear Judge Bayger:
I had a difficult delivery when my son was born. When he was 3 years old, he started having seizures. He’s now 12 years old and the seizures are getting worse. I’ve consulted with pediatricians and they have indicated that something may have occurred during the child birth process. Can I sue the doctor who delivered my baby?
Signed, Concerned Mom
Answer: You raise a somewhat unique issue in the realm of medical malpractice. No one wants to sue their doctor, who is ultimately trying to help during a time of crisis. However, that does not make them infallible or immune from responsibility.
Generally speaking, when dealing with minors, those unable to bring a legal action on their own behalf by virtue of their age, the time to take such action tolls until they turn 18 years old. Then, depending on the type of action, they have a certain amount of time to act before the statute of limitations runs out.
As it occurs for injuries at birth, a lawsuit must commence no later than 10 years from the incident or the end of treatment, whichever is later. Presumably, any medical impropriety would have been apparent by that time. In your case, I need a little more information to form a proper conclusion.
When your son was born, was there any indication that something was amiss? Though you say the birth was difficult, was there any follow-up care? If so, how long did it continue? These are important questions because the tolling of the statute depends on the type of care that followed.
If your son is now 12 years old, the 10-year statute of limitations would have expired two years ago. But, if the treatment of his seizures started at age 3, and has continued to present, there would be no break in the legal timeline. However, if the doctor that delivered your baby is different from the doctor who is treating your son, there may not be a cause of action against the doctor that delivered the baby because of the 10-year statute of limitations.
(Retired State Supreme Court Justice Frank R. Bayger is inviting you to submit legal questions pertaining to personal injury or wrongful death cases to him for a published response. Email your questions to Judge Bayger, a Hall of Fame trial lawyer, and the judge will respond in writing in the Niagara Falls Reporter. Send your email to [email protected].)
