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A decision Wednesday by the Ohio Supreme Court gives parents more time to file lawsuits against doctors for anguish they suffer when their children are victims of medical malpractice. The ruling extends the window in which parents can file lawsuits from one year up to the child's 19th birthday.
The unanimous decision was based on claims brought by the parents of 17-year-old Tara Fehrenbach of Loveland. For parents of a child injured by medical negligence, the decision means they will not be put in position of filing a lawsuit within a year of the injury when the impact of the injury is not fully known. Under the old system, parents had one year from the time of injury to file a suit, while the child had until his or her 19th birthday to sue.
For doctors, the decision means they are exposed longer to potential lawsuits, but it might lessen litigation because both the parents' and child's claims likely will come at the same time. "Rarely do we get the opportunity to change Ohio law for the better, but the Fehrenbach v. O'Malley case released today ... finally recognizes how goofy it was that a parent had to bring suit before the child's statute of limitations had run (out)," said First District Court of Appeals Judge Sylvia Hendon, who wrote the original decision.
Andre Wallace faces the distinct possibility that the legal system that wrongly kept him in jail for a third of his life will now tell him he waited too long to seek compensation. Several Supreme Court justices indicated Monday they are inclined to agree with lower court rulings that Wallace missed a deadline by waiting until 2003 to sue the Chicago police officers who arrested him illegally in 1994.
Wallace was freed from prison in 2002, after Illinois courts ruled his arrest was illegal, reversed his murder conviction and caused prosecutors to drop charges against him. He had been in custody since shortly after John Handy was shot to death in 1994, when Wallace was 15. He had two years in which to file his civil rights lawsuit.
The question before the justices is whether the two-year clock began running when Wallace was arrested in 1994, when he was released from custody in 2002, or at some point in between. The 7th U.S. Circuit Court of Appeals said Wallace should have taken some action in the two years after his arrest. In similar cases in other parts of the country, appeals courts have said false arrest claims can't be filed until convictions are nullified. Wallace's attorney, said the court would compound his client's injury by telling him the deadline, or statute of limitations, had expired. "It's just tough. You're seized for 8 1/2 years and you can't go to state court and you can't go to federal court," Flaxman said. But the Supreme Court is a stickler for deadlines, and several justices said the claim should have been filed closer to the arrest.
The deadline serves several interests, including peace of mind of the police officers who otherwise would not know for years whether they would be sued, Chief Justice John Roberts said. A ruling is expected before July.
The family of Royce Robinson, the teen who died after an assault at a roller rink last November, has filed a wrongful death lawsuit against the rink and the teen charged in Royce's death. Royce, 17, died Nov. 8 of cardiac arrhythmia triggered by a seizure after he was assaulted just after midnight at a cheerleading fundraiser at Champ's Manslick Rollerdrome.
The lawsuit, filed Thursday in Jefferson Circuit Court by Tanya and Royce Robinson Sr., names the rink, the Central High School Cheerleading Booster Club and Corey Thompson, the teen charged with manslaughter in Robinson's death. Thompson's trial ended in a mistrial in August; a retrial is scheduled next month.
The lawsuit claims that the booster club was negligent in organizing the fundraiser and that it and the roller rink failed to provide adequate security and crowd control. An attorney for the Robinson family, said the rink was packed with children the night Royce died, with little adult supervision. "There weren't enough eyeballs on those kids," he said. Claims made in a lawsuit give only one side of the case. A call to the rink was not returned.
The lawsuit includes several unnamed parties, among them the Central High School administrator responsible for the Booster Club. Jefferson County Public Schools does not comment on pending litigation, spokeswoman Lauren Roberts said. The lawsuit claims Royce was "intentionally and unexpectedly assaulted and battered" by Thompson "without any provocation." The Robinsons' attorney said the lawsuit was filed now because the one-year statute of limitations was approaching. The suit seeks a jury trial and punitive damages.
The Mississippi Supreme Court has agreed to hear the appeal of a mother and son who lost a lawsuit that claimed Sherwin Williams Co. was responsible for the lead paint that made the boy sick. The suit was filed in 2000 in Jefferson County Circuit Court by Shermeker Pollard of Fayette on behalf of herself and her son, Trellvion Gaines, who was then 9.
The issue before the Supreme Court is whether Trellvion and Pollard waited too long to file their lawsuit. There is no timetable for the justices to decide the case. However, their decision could affect other cases involving underage plaintiffs, said an attorney who represents Pollard and Gaines. "This case is important because it will determine how the courts will apply the minor savings statute, and when the statute will run against the minor," the plantiffs attorney said. A trial judge ruled in favor of the Cleveland, Ohio-based paint manufacturer in June 2003. Sherwin Williams contended that Pollard knew about Trellvion's alleged injuries in 1994 and had only until 1997 to pursue the lawsuit under Mississippi's statute of limitations. The state Court of Appeals upheld the lower court decision in 2005, siding with the paint manufacturer. "They indicated that the mother had learned that Trellvion had been exposed to lead paint in 1994 when one of his elevated blood level tests was taken. The mother would have had three years to file her individual claim from the date she knew she had injury," Porter said of the appeals court ruling.
However, the plantiffs attorney believes the statute of limitation still covers Trellvion. "Generally speaking, you have three years from the date that a guardian was appointed. In this case, his mother was appointed guardian on the same date that the lawsuit was filed," Porter said. The statute of limitation issue is not one lawyers in other states often face when litigating lead poisoning cases, said one Boston attorney, who has argued several cases against the paint manufacturing industry. "When it comes to kids in most states, in particular in the states in which I work, the statute doesn't begin to run until the child reaches the age of maturity," the Boston attorney said.
In the Pollard lawsuit, the plaintiffs allege Trellvion ingested lead paint chips while living in a house that had been occupied by Pollard's mother, Doris Gaines, since the 1970s. Lead paint was banned in the United States in 1978, but can be found in some older homes and rundown housing. The lawsuit alleged that "Trellvion was exposed to lead dust, chips and other debris which resulted from the sanding, scraping and other removal of lead paint from the house, which occurred based on the required procedure for application of Sherwin Williams' non-lead based paint." The suit also alleged that Trellvion became sick from his exposure to the lead paint and that Pollard suffered mental anguish in addition to the medical expenses for the child.
The state Senate voted yesterday to extend the statute of limitations for child sex abuse claims by 12 years, raising hopes the Legislature will send the governor a bill before it recesses for the summer. The Senate approved a bill passed by the House late Wednesday that would increase the statute of limitations from 15 to 27 years after the accusers' 16th birthday, giving them until they are 43 to report sexual crimes.
The House bill would also require sex offenders to register at least 10 days before they leave prison, verify that they are living in a homeless shelter within 45 days of release, and, among other provisions, require the most dangerous sex offenders who fail to register to submit to lifetime community parole supervision. ``We feel that we've passed the most sweeping sex offender legislation since the inception of the sex offender registry," said Representative Tom Golden, a Lowell Democrat who has been one of the bill's main supporters. ``We're closing loopholes, increasing penalties, and expanding the opportunities for prosecutions. It's all done to protect our citizens from these heinous crimes."
The Senate's version of the bill requires the state to establish nursing homes and other facilities for the most dangerous sex offenders. It requires sex offenders to wear global positioning satellite devices while on probation. It would also delay the clock on the statute of limitations if the accuser does not come forward because of threats of physical violence, physical or psychological injury caused by the abuse, or any period where the defendant prevents witnesses or evidence from being available. Kyle Sullivan, a spokesman for House Speaker Salvatore F. DiMasi, said he expects the legislation to be sent to Governor Mitt Romney by Monday. Eric Fehrnstrom, Romney's spokesman, said the governor wants to sign a bill that would extend the statute of limitations. ``The administration's preference is to lift the statute of limitations entirely for victims of child sexual abuse, but this represents progress, and we look forward to receiving the bill," said Fehrnstrom.
Ed Saunders, executive director of the Massachusetts Catholic Conference, a lobbying organization that represents the Archdiocese of Boston, said the state's bishops support extending the statute of limitations. He also said they would support delaying the statute of limitations as proposed by the Senate. But he said they do not want to completely discard the statute of limitations. ``I think by eradicating the statute of limitations, you run into some due process issues," Saunders said. ``The accused must have the right to properly defend themselves." Defense attorneys who represent accusers said the proposed legislation does not go far enough. Carmen L. Durso, a Boston-based attorney who has represented more than 200 alleged victims of child sex abuse, said the bill should lengthen the statute of limitations for children 14 and older who have been sexually assaulted but not raped and for children age 16 and older who have been raped. ``
The Legislature has made a very tentative step in the right direction, but in doing so, they have eliminated a group of people they have protected in the past," Durso said. ``That's a huge error, which I hope they will correct, and correct quickly." Suffolk District Attorney Daniel F. Conley, who has long pushed for such legislation, said he will continue to push the Legislature to scrap the statute of limitations for child sex abuse. ``Far too often, prosecutors in my office and across the state have met with grown men and women who needed decades to learn that the abuse and exploitation they suffered as children was not their fault, only to find that the legal clock had stopped ticking years earlier and that their abusers had avoided accountability for their crimes," he said. ``It is because those victims now have, if not all the time we would hope, then at least more time than they have previously had, that I believe this compromise was good and worthwhile," Conley said.
A DNA match has enabled Alameda County Sheriff's deputies to arrest a convicted rapist in connection with three East Bay sexual assaults that occurred in the early 1990s, one of which involved torture. James Dwayne Smith, 45, is already serving time at the San Luis Obispo Men's Colony for a rape conviction in Southern California. He has been extradited to Alameda County to face a torture charge for a 1991 case in which a 13-year-old girl was kidnapped, raped and tortured in unincorporated Hayward, according to a sheriff's news release.
Smith will not be charged for the kidnapping and rape in that case because the statute of limitations has passed. There is a 10-year time limit on filing sex crimes and a six-year limit on kidnapping charges, said Sheriff's Sgt. Scott Dudek. A match with the three rape cases occurred on March, 15 years after the crimes occurred. There is no time limit, however, on prosecuting torture cases. Smith's DNA also was a match with evidence from a Dec. 31, 1990 rape case in Castro Valley and that from a Jan. 23, 1991 case in Berkeley. Investigators cannot seek charges on those cases because of the statute of limitations has expired on both. Dudek said the victims said they're happy someone already in prison is a suspect, but they think it may be a time to reexamine the statue of limitations for heinous crimes. Dudek couldn't agree more. "We have the scientific technology to make biological DNA hits on these cases. What's more serious than being raped and kidnapped?" Dudek said.
Smith may be whom the media dubbed the "Holiday Rapist," who in 1990 and 1991 raped at least five victims in the Bay Area on or near holidays. Dudek said. The rapist would grab his victims as they were walking and pull them into his van Smith was in the Bay Area at the time, working at a local grocery store chain, Dudek said. He was scheduled to be released in December and investigators are glad to get him when they did.. "We're very happy that he doesn't totally walk in December," Dudek said.
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