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Plaintiff’s Lead Exposure Case Denied Due to Statute of Limitations Issue


A child was born at a public hospital in New York on September 5, 2000. He was repeatedly brought to the same public hospital for his routine well-baby check-ups. At his six-month check-up, on March 21, 2001, he was not given the routine blood test required to screen for lead poisoning. He continued to go for routine well-baby check-ups at the public hospital. He came in a few times for ear infections, diarrhea, decreased appetite, stomach pain, decrease and a broken arm.

In March 2001, the infant changed residences with his parents. The apartment they moved into had peeling paint. It is the mother’s contention that the child was exposed to the lead in the peeling paint at their new apartment beginning at this time.

A New York Injury Lawyer said the first ever blood test screening for blood lead levels was first performed on the child only on August 14, 2002. At this time, the blood lead of the child was just 6 micrograms per deciliter. The mother was not told that this result could mean that her baby had been exposed to lead. The mother was not told that exposure to lead would cause cognitive impairment in her child.

The lead blood poisoning of the child was not diagnosed until September 9, 2003 when he was already 3 years old. He was hospitalized until September 17, 2003 to receive chelation therapy. The mother consulted three different lawyers. She intended to sue the owners of the apartment to recover damages for the lead poisoning of her baby due to the peeling paint in the apartment which contained lead. A Long Island Personal Injury Lawyer said one of the lawyers she consulted took the case because the owner of the apartment did not have any insurance. None of the lawyers ever informed her that she had a cause of action against the public hospital for medical malpractice.

The baby boy continued to go to the public hospital for follow-up-check-ups and routine well-baby check-ups from 2003 until March 2006.

In the meantime, on June 8, 2005, the parents finally found lawyers who told them that they had a cause of action for medical malpractice against the public hospital. The doctors first served a claim against the public hospital on February 6, 2006. On July 21, 2006, the public hospital examined the hospital records in their possession and deposed the mother. On September 28, 2006 the mother finally filed a medical malpractice case against the public hospital and served summons and a copy of the complaint on the public hospital on October 2, 2006.

The mother claims that the public hospital’s failure to perform the routine blood test for blood lead levels when the baby was 6 months old, when he was a year old, and when he was two years old resulted in the prolonged and undiagnosed exposure of their baby to lead. A Manhattan Personal Injury Lawyer said this lead poisoned their child and the lead poisoning caused his brain injury, learning disabilities, speech disorders, hyperactivity, attention deficit and developmental delay. For this, the mother claims damages.

The hospital claims that the complaint is barred by the Statute of Limitations. The law provides that actions for medical malpractice must be initiated within two years and six months from the time the medical malpractice or the last treatment of the illness, injury or condition complained of.

It was the hospital’s contention that they continued to treat the child until March 2006. They claim that the continues treatment should count only from the time that the lead poisoning was discovered in September 2003 but that it cannot count until March 2001 when the child turned 6 months. In effect, the hospital was asking the Court to dismiss that part of the complaint that alleged medical malpractice in failing to test the child from March 2001 until August 2002. They claim that if they had committed medical malpractice, only that which may have occurred after September 2003 should be considered.

The Court found that prior to September 9, 2003 there was no evidence that the child had lead poisoning. His treatments and visits to the public hospital were for routine well-baby check-ups. The lead poisoning was diagnosed only on September 9, 2003. After this date, the child began continuous treatment for the lead poisoning. Thus, the notice to the public hospital should be deemed effective only beginning September 9, 2003.

Despite this finding, the Court still made the late notice apply to any medical malpractice beginning on March 22, 2001 until September 9, 2003 because the medical malpractice case include injury to a child who is mentally and physically incapacitated to look out for its own interests.

Skilled lawyers not only need to prove negligence and deviation from accepted medical malpractice, they also need to file timely notices of claim if the party being sued is a public hospital. The attorneys from Stephen Bilkis and Associates are ready and willing to assist you in filing a notice of claim. They are also willing to assess the facts of your case to see if you have a viable cause of action for medical malpractice. Call Stephen Bilkis and Associates today, speak with any of their legal team and begin the process to ensure you are compensated for valid legal claims you may have.

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