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Miami Medical Malpractice Attorneys Discuss Complex Issues Regarding Calculation of the Statute of Limitations and Attorney-Client Privilege in the Context of Birth Injury

If your infant is injured during the birthing process or immediately before or after delivery, the news is devastating.  Approximately one in 323 children are identified with motor and developmental disabilities associated with a diagnosis of cerebral palsy (CP) according to the CDC.  Medical malpractice lawsuits, insurance company hurdles, and the complexities of litigation might not be your highest priority.  However, parents of an infant who experiences a birth injury must be prepared for enormous medical expenses and supportive care throughout their child’s lifetime.  In this blog, our medical malpractice attorneys discuss a lawsuit illustrating the unique complexities associated with the statute of limitations and attorney-client privilege in the context of a birth injury claim.

The plaintiff was a mother who gave birth to a daughter on July 16, 2005.  The mother was informed that her daughter was diagnosed with cerebral palsy by a neurologist in early 2007.  The plaintiff filed a motion to extend the statute of limitations for pursuing a medical malpractice claim against the physicians, clinics, and hospitals.  The plaintiff filed a notice of intent to commence litigation of the medical malpractice claim in November 2013. 

The defendants in the medical malpractice lawsuit argued the plaintiff failed to comply with the statute of limitations.  During the plaintiff’s deposition, the defendants asked questions designed to identify the attorneys she consulted to evaluate when she was aware of the potential medical malpractice claim.  Although she admitted that the lawyer who filed the lawsuit was not the first attorney she consulted, she objected to the questions based on attorney-client privilege.  The defendants sought and obtained a court order compelling responses to the following questions: (1) why you previously sought legal advice; (2) names of attorneys you consulted; and (3) the dates you sought legal advice.

On appeal, the court noted that the Florida Evidence Code provides as follows: “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communication because they were made in the rendition of legal services to the client.” §90.502(2) Fla. Stat.  The court also cited §90.502(1)(c), Fla. Stat., which specifies that a communication between a client and lawyer is confidential when there is no intention to disclose it to a third party except to facilitate legal services or communications reasonably necessary for the communication.

When applying this standard, the court clarified that privilege does not apply to information known by the client that is not the product of communication between the client and lawyer.  Facts known independently do not become protected because they are later communicated to a lawyer.  The appellate court ruled that factual inquiry regarding the dates, names of attorneys consulted, and general purpose of the consultation were discoverable, but inquiries about plaintiff’s reasons for seeking the consultations would permit an intrusion into matters protected by attorney-client privilege.  The appellate court ruled that the plaintiff had to answer factual questions regarding specific information that she learned at specific points in time about her daughter’s condition and treatment from sources other than attorneys who provided consultations.  However, the trial court went too far by allowing disclosure of information and advice provided by the lawyers.

Greenberg, Stone, & Urbano:  Seeking Maximum Recovery for Damages Sustained Due to Negligence 

Discovery and effective use of valid objections, such as privilege or attorney work product can decide the outcome of a birth injury lawsuit.  In this case, the ruling of the court would decide whether the plaintiff’s claim would be completely barred by the statute of limitations (SOL). Our attorneys at Greenberg, Stone & Urbano will tenaciously pursue the full compensation our clients are entitled to under the law.  For over 130 collective years, our firm has assisted many people with damage claims across South Florida.  We seek to obtain compensation for your tangible and intangible damages.  Our skill and dedication have earned us an AV rating from Martindale-Hubbell and recognition as one of South Florida’s top firms by the Miami Herald.   Call us at (888) 499-9700 or (305) 595-2400 or visit our website to schedule your initial consultation.





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