Florida Record

Friday, April 10, 2020

Florida Court of Appeal reverses birth-injury case over disputed statute of limitations


By John Sammon | Jan 14, 2020

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MIAMI – The Florida Third District Court of Appeal reversed a lower court judgment, ordering reconsideration of a malpractice case in which a child developed spastic cerebral palsy.

According to the opinion filed by the court on Dec. 26, the Florida Third District Court of Appeal stated that the summary judgement on the issue was improper. 

“There is disputed fact when the statute of limitations began to run in this case,” the opinion brief read. 

Tavarion Sanders was born at Homestead Hospital on Sept. 16, 2009. Neither the hospital nor the delivering doctor advised Misty Mobley, Tavarion's mother, that Tavarion had suffered any injuries during delivery. The boy was kept in the hospital for 10 days after birth to treat an infection, the hospital told Mobley. 

An ultrasound was performed on the child and doctors told Mobley the boy was healthy and normal.

Months later, Mobley noticed the child was not meeting developmental milestones. In 2010, Mobley requested Medicaid benefits and was denied. She retained a lawyer to secure the benefits and requested medical records from Homestead Hospital.The records were not received. 

Attorney Ron Gilbert filed a Florida Birth Related Neurological Injury Compensation Association (NICA) petition for Mobley. The NICA denied the petition because experts had found no birth event or mental impairment in the child.

In 2012, Tavarion had an additional brain MRI performed which revealed the boy had spastic cerebral palsy, caused most often by a lack of oxygen during labor and delivery. A doctor reviewing medical records at that time concluded the condition was a result of medical malpractice.

Mobley filed a complaint against Homestead Hospital and the delivering doctor in 2014.

In 2017, attorneys for Homestead Hospital asked the Miami-Dade Circuit Court for summary judgment, arguing that a statute of limitations to file a complaint had expired in June of 2013.

The court granted the motion by Homestead. Mobley appealed, disagreeing when the statute of limits began to run. She said the limits statute started in 2012 when she was first told by doctors the boy’s condition might be related to his birth delivery.

The hospital claimed the start date for the limits statute was 2010, when Mobley and her attorney requested the medical records from the hospital, and by then should have known the possibility of medical negligence occurred. However, the court of appeal determined that in 2010, Mobley had no idea the situation was an issue of alleged medical malpractice.

"It was not until November 2012 when Tavarion was examined that Mrs. Mobley received information for the first time that his condition might be birth related,” the opinion brief read. "Before 2012, the boy’s condition was described as caused by an 'unknown or genetic issue.'"

The court of appeal determined there was disputed fact when the statute of limitations began to run and reversed the summary judgment of the circuit court, remanding the case back for further proceedings.      

Florida Third District of Appeal case number 3D18-895     

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Florida Third District Court of Appeal