The details of this bill were discussed in this previous Florida Child Injury Lawyer Blog post. The Florida Legislature was considering a bill that overturn a Florida Supreme Court decision and allow parents to waive their children’s right to sue businesses if the children are injured.

The legislative session ended on May 1 and the bill was not passed.

In Rodriguez v. Favalora, the court ruled that Florida law does not allow victims who remember their childhood abuse later in life to file suit against those who negligently allowed the abuse if the statute of limitation has already run.

Now, Florida Statute section 95.11(7) does allow victims who recall their childhood abuse later in life to sue their abusers even if the statute of limitation has already run.

The intense trauma that results from childhood molestation can cause substantial psychological damage including the loss of all memories associated with the events. Demands of secrecy by an adult authority figure alone may cause a child to suppress his or her abuse.

To combat this effect and bring abusers to justice, Florida’s “delayed discovery doctrine” allows victims of childhood abuse to sue their abusers in civil court within four years from the time the victim discovers an injury that was caused by the past abuse. Normally, a victim must file suit before they turn 26 or within four years after they become independent of the abuser (whichever comes first).

Without the delayed discovery doctrine, victims of childhood abuse who only remembered their abuse after the standard statute of limitation had run would not be able to sue their abusers. Now, Florida’s Third Circuit has ruled that the delayed discovery doctrine is only available to victims who sue abusers who act with intent and not those who act only negligently.

The case involved a man who was molested while in a foster home operated by the Catholic Church. His claim against the church was that it acted negligently in not providing a safe foster home where he would be free of abuse. However, his claim was denied because he alleged the church acted negligently and not intentionally.

The effect of this ruling is that those organizations and institutions that fail to protect our children against molesters and abusers when the organizations and institutions had a legal duty to do so (as in this case) will often go unpunished in civil court in cases of delayed discovery.

The delayed discovery doctrine will not allow people who intentionally abuse children to escape liability in situations of delayed discovery because those abusers acted with intent. However, if the abuser’s employer shares in the fault through their negligence, then the Third Circuit just gave them a free pass in cases of delayed discovery.

This ruling defeates the purpose of tort law. Civil liability for wrongful behaviour is designed to serve two purposes: make the victim whole to the greatest extent that the law can, and to deter the harmful behaviour in the future.

If organizations and institutions are allowed to escape liability for their negligence just because they are lucky enough to have harmed a victim who does not remember his or her abuse until after the statute of limitations has run, then the institutions are not deterred as much as they should be.

Florida law should subject negligent child abusers to the same liability and deterrent effect that we subject intentional abusers to. That way, the businesses, churches and other organizations charged with protecting our children have the greatest number of incentives possible to act responsibly.

However, the Senate Judiciary Committee has refused to hear the bill in two weeks of meetings which means that it can not advance to the Senate floor for a full vote yet. For some reason, the House of Representatives has already OK’d the bill for a full vote.

Of course, a bill needs to be passed by both houses to become a law and fortunately that’s a long way off for now. The bill the tourist industry wants so badly would overturn a Florida Supreme Court decision and allow parents to waive their children’s right to sue businesses if the children are injured.

The Florida Supreme Court ruled that such waivers are against public policy because they shield businesses whose negligence leads to a child’s injury. The justices said that allowing parents to waive their children’s right to sue eliminates an important incentive for businesses to protect their customers from faulty rides and other potentially dangerous activities.

When are we going to stop allowing powerful businesses to shed responsibility for their actions? This country champions personal responsibility and I hope we can continue that tradition by not passing this bill.

Stay tuned in the coming weeks to see how this bill fares. The legislative session doesn’t end until May 1.

The cooling method has been used successfully since the 1950s in to reduce damage to the brain and other organs caused by heart attacks. More recently it has been used on neurological patients, and about two years ago, doctors began treating newborn infants who have suffered brain injuries.

Babies can suffer brain damage during childbirth for any number of reasons but it almost always stems from a lack of oxygen to the brain. Often, the child does not get enough oxygen because the umbilical cord becomes pinched.

Every year, about 2 to 4 of every 1,000 babies suffer oxygen deprivation at birth. However, doctors will not currently treat their brain injuries with hypothermia therapy unless the infants have reached 36 weeks gestation because premature babies are too fragile for the procedure.

The treatment reduces the infant’s body temperature to 92 degrees. After doctors feel the appropriate amount of time has passed, they gradually warm the infant to a normal body temperature over the course of six hours. As of yet, there are no significant, known side effects to infant cooling.

One hospital has used the therapy on eight oxygen deprived babies to date and only one has died. That infant died not from the cooling itself, but because his birth injuries were so severe. Of course, the full measure of the children’s brain injuries cannot be known until they grow out of the newborn phase.

MRIs can reveal some damage, but not the full extent. Some of the babies who have been treated so far have partial brain injury, and some do not.

The treatment works because cooling reduces swelling, slowing the injury and preventing a cascade of events that causes cell death. The technique saved the life of a newborn that had too little oxygen for almost 15 minutes. That is almost three times longer than it takes for brain damage to occur.

In 2005, an 18-year-old who was cooled amazingly maintained normal brain function after he lost his leg in a boating accident and his heart stopped for 45 minutes.