An appellate court has ruled a mother can amend her lawsuit against three doctors and the Public Health Trust of Miami-Dade County, which operates Jackson Health System, for allegedly ignoring signs of fetal distress that ended up causing her daughter severe brain damage.
Stephanie Gonzalez and her twin were born prematurely in 2005. Stephanie suffers from seizures, cerebral palsy, spastic quadriplegia, cortical blindness and encephalopathy. Her twin was born healthy.
Miami-Dade Circuit Judge Jorge E. Cueto dismissed the 2010 lawsuit filed by Yulexi Exposito, agreeing with defendants that she didn’t give sufficient notice to sue the Miami public hospital, and the doctors, as agents of the public agency, were immune from liability.
Cueto denied Exposito’s motion to amend her lawsuit to include documentation that the parties had been notified in accordance with state law.
The Third District Court of Appeal on Wednesday remanded the case to trial court with directions to allow Exposito to serve her proposed second amended complaint.
The defendants argued Exposito’s lawsuit was time-barred because she didn’t file a notice to sue within three years of her daughter’s birth, but the appeals court ruled that was a misreading of state law.
Judge Leslie Rothenberg, writing for the unanimous three-judge panel, said a cause of action accrues when the last element constituting the cause of action occurs.
“That definition is clearly different than the more restrictive formulation advanced by the defendants, the occurrence of a single ‘incident,’ ” Rothenberg wrote. Judges Vance Salter and Ivan Fernandez concurred.
Exposito stated in her 11-count complaint that she didn’t learn until much later that her daughter’s maladies were the result of birth-related medical malpractice.
The University of Miami School of Medicine and two doctors settled Exposito’s lawsuit separately. But the Public Health Trust and three other physicians sought to have it dismissed.
The lawsuit states doctors at Jackson Memorial Hospital failed to order a timely Caesarean section and allowed a vaginal birth despite indications for 12 hours of fetal distress. The lawsuit alleged the doctors and residents confused monitoring of the twins in utero.
Test results showing Stephanie suffered severe brain damage because of the delay were lost by the defendants, the lawsuit claimed.
The county attorney’s office, which represented the defendants, did not return a call for comment by deadline.
Orlando attorney Maria D. Tejedor and Carlos Diez-Arguelles of Diez-Arguelles & Tejedor represented Exposito.
“This is the second case that we have had with the Public Health Trust that has gone up on appeal where they have attempted to deprive severely damaged children the right of access to the courts based on technicalities and gamesmanship,” Diez-Arguelles said.
The Third DCA chastised Miami-Dade County Attorney Jorge Cuevas and Assistant County Attorney Eric K. Gressman in a footnote for taking advantage of being allowed to file post-argument case law by submitting a “remarkable flurry” of 10 cases dating back to 1948 “together with narrative constituting additional argument.”
The court vacated its order allowing the county to supplement the record and advised the attorneys to review the Florida Rules of Appellate Procedure.