Depakote, Birth Injury Lawsuits & Statute Of Limitations

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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While many pregnant women may discover that Depakote use has caused their yet-unborn child’s birth defects such as Spina Bifida, congenital cardiac defects, cleft palates, limb deformity, facial dysmorphism and others, that doesn’t necessarily mean that the statute of limitations for filing a lawsuit begins to run at that time. In fact, the Louisiana Supreme Court has held that the statute of limitations does not start to run until a child is born.

When is a Depakote lawsuit time barred?

That was the question the Louisiana Supreme Court had to decide – and its ruling may provide courts across the nation with a better understanding of when the statute of limitations in a Depakote birth injury case begin to run.

According to court documents, Ginger Bailey was a psychiatric patient with a long history of treatment and hospitalization for bipolar disorder and had been treated with various prescription medications over the years – including Depakote. She became pregnant while taking the drug, but had no idea that Depakote use could cause birth defects – because no one had told her. In a subsequent ultrasound, doctors confirmed that her yet-unborn child would suffer from several birth defects caused by Depakote use.

The child, a girl named Jada, was born with Spina Bifida, mental retardation, paralysis from the waist down and many other birth defects. Bailey filed a Louisiana medical malpractice lawsuit against her doctors and the pharmacies where she purchased the Depakote. The defendants claimed that Bailey’s lawsuit was time barred because she did not file the lawsuit within Louisiana’s one year medical malpractice statute of limitations – which they maintained began to run when she discovered that her yet-unborn child would be born with birth defects. However, the Louisiana Supreme Court ruled that the statute of limitations accrued at the time of birth – not while the child was still a fetus (in utero) – unless the latter would benefit the child.

What the ruling means

While every state has its own statute of limitations, the Louisiana Court’s ruling may affect how other courts with ambiguous laws on the issue might rule. If your child has been injured due to the dangers of Depakote use should contact an experienced Depakote attorney as soon as possible to avoid litigation over the matter.

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