If it looks like a sham and talks like a sham, is it a sham? Not until there’s a full evidentiary hearing on the issue, Florida’s Second District Court of Appeals ruled in a recent medical malpractice case, Reyes v. Roush.

Athany Reyes was born on May 25, 2005. According to the court, Athany “appeared to have limited use of one of his arms, possibly a shoulder dystocia which may be caused by an injury to the brachial plexus nerve during birth.”

Shortly after his birth, Daisy Barcenas – Athany’s mother – considered filing suit against Dr. Catherine Nguyen Roush, who was the attending obstetrician at the time of the delivery. Barcenas contacted a personal injury law firm, which carried out the pre-suit investigation required before filing a medical malpractice action. The firm ultimately concluded that it appeared that Dr. Roush did not breach her duty of care in delivering the child.

After four years of physical therapy, doctors informed Barcenas that continued therapy was unlikely to fully restore motion to Athany’s arm. A specialist, however, indicated that corrective surgery was a possibility. The specialist also told Barcenas that Athany’s injury may have been caused by malpractice. As a result, Reyes filed suit against Roush on Feb. 7, 2011, alleging that the doctor committed medical malpractice during Athany’s delivery which resulted in his injury.

A trial court granted Roush’s motion to dismiss the claim, finding that it was barred under Florida’s statute of limitations, which requires a plaintiff to file suit within two years from when the person knew or should have known of both the injury and the reasonable possibility that it was caused by malpractice.

In her complaint, Reyes claimed that she did not become aware that she had a claim for medical malpractice until February 13, 2009. The trial court ruled that this allegation was a “sham.” Under Florida law, a court may strike an allegation from a pleading where it finds that the claim is “mere pretense set up in bad faith and without color of fact, and thus plain fiction,” as the state supreme court explained back in 1934 in Rhea v. Hackney.

Here, the Second District found that the evidence was insufficient to support a finding that Reyes’ assertion as to when she became aware of her malpractice claim. The court ruled that the “sham” determination requires a full evidentiary hearing in order to give each party the opportunity to present evidence in support of their positions on the matter. Yet the trial court made its determination based solely on argument from counsel and a review of an affidavit that Reyes submitted on her behalf. Although the counsel argument indicated that Reyes became aware of her claim shortly after Athany’s birth, when she consulted a law firm, the court said that this argument could not take the place of a full hearing.

As a result, the court reversed the trial court’s ruling and remanded the case for further proceedings.

The timing on an action is just one of a number of issues that a person considering a medical malpractice suit in Florida must mull over prior to filing suit. If you or a loved one was injured by poor medical care, contact the South Florida medical malpractice attorneys at Anidjar & Levine. Our firm represents clients throughout the area, including in Hialeah, Hollywood and Pompano Beach, and offers a free initial consultation from our Fort Lauderdale offices. Call the firm today at 800-747-3733.

Related blog posts:

Pre-Suit Notice in Florida Medical Malpractice Cases Must Include Negligence Allegation – Rell v. McCulla

Quality, Not Quantity: Expert Witnesses in Florida Medical Malpractice Cases – Duss v. Garcia

Florida Court Explains Causation in Medical Malpractice Cases – Hollywood Medical Center v. Alfred