The purpose of this post is to discuss a cerebral palsy verdict for an injury that occurred in 1984 and to explain the statute of limitations in birth injury cases in Washington in 2018.
While the Plaintiff is blessed with above-average intelligence with a degree from Arizona State University, she uses a wheelchair and lacks motor skills due to the brain damage from cerebral palsy.
How does a cerebral palsy case with such tremendous upside go to trial? Defendant’s cerebral palsy lawyer reportedly turned down a high/low of $2 million/$300,000. Usually, cerebral palsy cases go to trial because one side miscalculates, which appears to be the case by the hospital in this case.
The child grew up to be a very special woman who has changed how people look at what is possible with cerebral palsy. She holds three university degrees, including a Master’s Degree in Social Work. She also played wheelchair soccer. Just a nice story.
You can read more about this case here.
Birth Injury Statute of Limitations in Washington
The general rule in Washington is that there is a three-year limitations period for medical malpractice actions. For minors, the rule prior to 2006 for minors was that the statute of limitation is tolled until they reach the age of majority. (This is how the case above survived after such a long period of time.)
Now the rule is very different, imposing an eight-year statute of repose in RCW 4.16.190:
Statute tolled by personal disability.
(1) Unless otherwise provided in this section, if a person entitled to bring an action mentioned in this chapter, except for a penalty or forfeiture, or against a sheriff or other officer, for an escape, be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.88 RCW, or imprisoned on a criminal charge prior to sentencing, the time of such disability shall not be a part of the time limited for the commencement of action.
(2) Subsection (1) of this section with respect to a person under the age of eighteen years does not apply to the time limited for the commencement of an action under RCW 4.16.350.
The purpose of subsection (2) is to make an eight-year statute of repose for medical malpractice cases, depriving minors of the ability to sue in birth injury cases after their 8th birthday if the injuries arose after 2006, they do not apply retroactively to claims that accrued prior to the amendment of the statute.
What is a statute of repose? A statute of repose is a law that sets forth the maximum length of time available to file a lawsuit. It is impossible to argue that these statutes are just. Is it fair, for example, that a victim is not able to bring a claim because the injury or the cause of the injury has not yet been discovered?