APPELLATE VICTORY

Lowis & Gellen appellate attorneys recently prevailed on behalf of a doctor, his medical practice and his staff, when the First District Court of Appeals affirmed the trial court's ruling that a minor plaintiff's medical malpractice claim was barred by an eight year statute of repose. The claim, brought by parents on behalf of their son, alleged that the boy was injured in utero when his mother ingested a toxic dose of a dietary supplement provided to her by the defendants. Plaintiff alleged that the defendant doctor prescribed L-glutamine protein powder to treat the mother's allergies, but erroneously provided her with Selenium in a bottle marked L-glutamine, which the mother ingested during her pregnancy.

The First District Appellate Court did not allow oral argument on the matter, but relied instead upon the strength of the appellate briefs. Joan Kubalanza and Deborah O'Brien argued in the defendants' brief that the medical malpractice statute of repose, rather than the ordinary negligence statute, applied because the plaintiff's claim arose out of patient care. Defendants argued further that the statute of repose barred the action because the minor plaintiff's mother ingested the allegedly harmful substance more than eight years before the minor's claim was filed.

The appellate court rejected the plaintiff's argument that the minor was under a legal disability sufficient to toll his cause of action while a fetus, holding that the statute of repose was not tolled because the minor was not under any legal disability at the time that his cause of action accrued (at birth).