Judge: Lawsuit over newborn's death filed too late

By John O'Brien | Feb 1, 2013

BECKLEY – A federal judge has dismissed a lawsuit brought against Raleigh General Hospital and a doctor who were blamed for the death of a newborn.

Crystal Cook brought the lawsuit on Sept. 12 in Raleigh County Circuit Court against Dr. Gina Jereza Harris over the death of her newborn on April 1, 2010. The name of the child, who only lived one hour and 50 minutes, was Dawson Edward Elwood Kesner.

Harris was employed by Community Health Systems, and both were deemed employees of the United States for purposes of the Public Health Services Act.

U.S. District Judge Irene Berger ruled Cook missed the two-year statute of limitations.

“Decedent died on April 1, 2010, but Plaintiff did not file her Notice of Claim until June 22, 2012,” Berger wrote.

“Therefore, this action exceeds the two-year statute of limitations by nearly three months. Thus, Plaintiff’s claim is time barred and should be dismissed with prejudice.”

Raleigh General filed its motion to dismiss on Nov. 1, arguing that Cook’s complaint was subject to the statute of limitations found in the wrongful death statute. It also argued that it couldn’t be found vicariously liable for the acts of Harris because she was not its employee.

Cook argued that the applicable statute of limitations was found in the Medical Professional Liability Act, which she said allows children to maintain the right to bring a lawsuit until they are 12 years old.

Cook was arguing that Harris failed to perform a cesarean section earlier during her labor.

Raleigh General cited a West Virginia Supreme Court case from 1991 that found the MPLA does not supplant the two-year filing period for wrongful death.

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