The “Discovery of Harm” Rule in Cerebral Palsy Cases

Statutes of limitations set forth the time in which a plaintiff (injured party) in each type of case has to bring a case in that jurisdiction before the case would be time-barred — a period ranging anywhere from one year to ten years after the event giving rise to the plaintiff’s legal cause of action. In general, the period of time specified in the statute of limitations begins to run on the date the injury or breach of contract occurs and runs uninterrupted until the expiration of the time period. The lawyers at find this can be devastating to families whose newborn suffered birth injuries that led to the development of cerebral palsy.

How the Statute of Limitations May Be Unfair to Injured Newborns and Their Families

Cerebral palsy describes a developmental disorder that can impact a child’s abilities to move around and interact with his or her environment, either because of spasticity or involuntary movements. While a child that is deprived of oxygen or suffers other trauma before or during birth is at risk of developing cerebral palsy, some of the first indications that cerebral palsy may be present involve the child missing important developmental milestones. This can occur months (or sometimes longer) after the child’s birth, leaving the parents with little or no time within which to file a cerebral palsy birth injury lawsuit. Thus, if the statutes of limitations are followed, the parents of the injured newborn may discover that a birth injury contributed to their child’s development of cerebral palsy about the time that the statute of limitations period for filing a civil suit against the responsible party has expired.

The “Discovery of Harm” Rule

Most every statute of limitations contains certain limited exceptions to the normal operation of the statute of limitations. One of these exceptions is the “discovery of harm” rule, and this rule operates by tolling the operation of the statute until the injury giving rise to the cause of action was known or should have been known to the plaintiff. For example, if there was no indication that their newborn had been harmed by an unusually long labor (caused in part by the doctor’s reluctance to perform an emergency caesarean section) until the child began missing developmental milestones several months later, then the statute of limitations would begin to run at that time. This gives injured families the benefit of the full statute of limitations period.

Note, however, that the “discovery of harm” rule only tolls the statute of limitations until the time that the injured plaintiff knew or should have known that he or she had a legal cause of action. If that same family ignored signs that their child was missing developmental milestones and did not take the child for further testing or evaluation for several years, that family could not invoke the “discovery of harm” rule to start the statute of limitations period at the time they obtained further testing or evaluation. Because a reasonable plaintiff would have had reason to suspect his or her child suffered a birth injury when the child began missing developmental milestones, the statute of limitations would begin to run at that time — not when the harm was actually discovered.

One clap, two clap, three clap, forty?

By clapping more or less, you can signal to us which stories really stand out.