A Pennsylvania couple has filed a legal malpractice claim against a New York law firm
and one of its partners, alleging the litigators failed to timely file a medical malpractice complaint against a hospital that allegedly mistreated the plaintiffs’ young son.
Robert and Jillian Giza, who reside in Parkside, Delaware County, claim in their lawsuit that Buffalo, N.Y.-based Smith Miner O’Shea & Smith LLP, and lawyer R. Charles Miner in particular, failed to timely file a claim against A.I. duPont Hospital in Wilmington, Del., which had to be accomplished by their child’s sixth birthday.
The underlying claim had to do with alleged poor care that the then-4-year-old boy received at the hospital.
According to background information on the case, the child was taken to Riddle Memorial Hospital in Delaware County after suffering a left arm injury while playing with a classmate at school on Jan. 21, 2009.
Doctors at Riddle determined that the boy would need specialized care, and he was soon transferred to A.I. duPont.
During several days, the lawsuit claims, physicians at A.I. allegedly mismanaged the boy’s care, specifically, they failed to recognize his developing ischemia, and over time, the condition of the boy’s left arm deteriorated significantly “without any response from the physicians and medical providers at A.I. duPont,” the lawsuit states.
As a result of what the suit calls an “obvious medical malpractice” by the hospital, the plaintiffs entered into a contingent fee retainer agreement with the defendants in late March 2010.
The complaint states that the fact that the agreement was entered into between the parties proves the law firm believed the boy had a case against the hospital.
“If the Defendants believed that the Plaintiffs’ case was without merit, they had an obligation to immediately so advise the Gizas of such a conclusion; obviously this did not occur because the Plaintiffs’ complaint and causes of action are meritorious,” the suit states.
The suit claims that the defendants either did not understand or did not research the fact that in the State of Delaware, while the law requires that any claim be filed within two years from the date of the alleged negligence, it’s slightly different in the case of minors.
In that case, a suit must be filed by a child’s sixth birthday, and that the statute of limitations can only be extended for an additional 90 days if a Notice of Intent is sent to the potential defendants by certified mail before the running of the original statute.
“Despite promising the Plaintiffs that they would properly handle their and their son’s claim, the Defendants never did so because they failed to file [the boy’s] claim by the time of his sixth birthday on December 4, 2010, and never obtained any additional time under the statute of limitations,” the suit states.
The plaintiffs’ claims are now forever time-barred, the suit states, and the boy has no recourse against the medical providers who treated him in a “substandard manner and who proximately caused his permanent and devastating injuries,” the complaint continues.
The complaint alleges that the young boy continues to undergo medical procedures and treatments relating to his injuries and he expects to do so into the foreseeable future.
The suit contains counts of breach of contract and negligence.
The plaintiffs seek judgment in excess of the arbitrational limits, as well as a jury trial, interest, pre-and-post-judgment interest, delay damages, costs and other court relief.
The complaint was filed Aug. 15 at the U.S. District Court in Philadelphia by Philadelphia attorney Dion G. Rassias.
The federal case number is 2:12-cv-04640-PBT.