The father filed a Boston medical malpractice claim within the allotted three-year window for such lawsuits in the Commonwealth. However, the claim was ultimately dismissed as time-barred – a decision recently affirmed by the First Circuit Court of Appeals in Sanchez v. United States – because the doctors in the case were deemed to be federal employees. Although this information was unbeknownst to the plaintiff, the Federal Tort Claims Act requires any medical malpractice action against federal employees be brought within a two-year window.
The plaintiff, too late, is unable to seek justice for his beloved wife, mother of his children.
This case is a tragic example of why it is imperative that those mulling the pursuit of a birth injury claim consult with an experienced attorney as soon as possible. Even though state law allows three years for such cases, you never know what issues might result in a delay or whether something unexpected like this will significantly curtail your options.
This case is made all the more relevant with the recent release of the annual benchmarking report from CRICO Strategies, an arm of the Harvard Medical Institutions Inc., on the malpractice risks of routine medical procedures.
What researchers found was that in the 18,150-some medical malpractice claims filed in the U.S. between 2007 and 2011, 28 percent alleged failure during surgical treatment, 24 percent alleged failure of medical treatment, 21 percent alleged a failure of diagnosis, 5 percent were obstetrics failures and 24 percent were reported as other.
Many of these cases involved so-called “routine” procedures, where one would not expect a high likelihood of a severe outcome, particularly serious injury or death. And yet, 14 percent of these cases involved a death.
In 88 percent of the cases,the injurious error was reportedly the result of a failure or mistake of technical skill. About 21 percent of the cases reportedly involved breaches of facility rules or procedures.
Giving birth, while certainly not without risk, is considered a fairly common procedure at hospitals throughout the country. Given our access to modern medicine, there are very few instances in which birth injuries are unavoidable.
In the Sanchez case, the victim – a doctor herself – died in 2009, two days after delivering her third child by caesarean section. The woman’s widower alleged that the doctors responsible for her care knew or should have known that she had developed two potentially dangerous conditions: placenta previa and placenta accreta. These conditions required special care in the removal of the placenta and, most likely, a hysterectomy, to minimize the risk of hemorrhage.
But that did not happen. The hemorrhaging started after the woman was discharged from the hospital. Returning for care, a hysterectomy was performed, but it was too late. She died.
Attorneys in the case did not file the claim until nearly 35 months after the woman’s death. Had the doctors in the case not been federal employees, this would not have been an issue. But as they were, the case was not allowed to move forward.
The appellate court conceded that the FTCA’s two-year statute of limitations creates a “trap for the unwary who fail to recognize its applicability to a specific case.”
Congress provided some relief for these individuals in 1998 with the Westfall Act, but sadly, that provision still did not provide enough leeway to permit this case to continue.
If you, a loved one or a child have suffered as a result of a birth injury in Boston, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
Sanchez v. United States, Jan. 14, 2014, U.S. Court of Appeals for the First Circuit
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