Lloyd By and Through Lloyd v. North Broward Hosp. Dist., s. 87-2250

• Decision Date: 10 July 1990
• Docket Number: Nos. 87-2250,88-1419,s. 87-2250
• Citation: 570 So.2d 984
• Parties: 15 Fla. L. Weekly D1795, 16 Fla. L. Weekly 74, 1 NDLR P 2 Brandon David LLOYD, a minor child, By and Through his parents, Anthony D. LLOYD and Diane S. Lloyd, and Anthony D. Lloyd and Diane S. Lloyd, individually, Appellants, v. NORTH BROWARD HOSPITAL DISTRICT, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 984

570 So.2d 984

15 Fla. L. Weekly D1795, 16 Fla. L. Weekly 74, 1 NDLR P 2

Brandon David LLOYD, a minor child, By and Through his parents, Anthony D. LLOYD and Diane S. Lloyd, and Anthony D. Lloyd and Diane S. Lloyd, individually, Appellants, v. NORTH BROWARD HOSPITAL DISTRICT, etc., et al., Appellees.

Nos. 87-2250, 88-1419.

District Court of Appeal of Florida Third District.

July 10, 1990.

On Motion for Rehearing, Clarification and Certification Dec. 18, 1990.

Searcy, Denney, Scarola, Barnhart & Shipley and James L. Torres, Edna L. Caruso and Philip M. Burlington, West Palm Beach, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel Eaton, Miami, for appellants.

Wolpe, Leibowitz, Berger & Brotman, Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Blackwell Stieglitz, Miami, Korman, Schorr & Wagenheim, Ft. Lauderdale, Stephens, Lynn, Klein & McNicholas and Debra J. Snow and Robert M. Klein, Miami, Miller, Hodges, Kagan & Chait, Deerfield Beach, and G.J. Godfrey, Miami, for appellees.

Before HUBBART, FERGUSON and COPE, JJ.

COPE, Judge.

Anthony, Diane and Brandon Lloyd appeal adverse judgments in their suit for wrongful birth and wrongful life. We affirm in part and reverse in part.

The present appeal is one from a summary judgment against Mr. and Mrs. Lloyd on the basis of the statute of limitations, and from orders striking certain other claims. For purposes of this appeal we take the facts in the light most favorable to the Lloyds.

In 1976 Anthony and Diane Lloyd had a son, Michael, who was born severely deformed and severely retarded. The Lloyds sought an evaluation to determine if Michael's deformities were the result of an inheritable genetic defect so that they could determine whether to have more children. Mr. and Mrs. Lloyd consulted initially with their pediatrician, appellee Dr. Pedro Diaz, who referred them to other health care providers for testing. The other appellees are health care providers to whom Mr. and Mrs. Lloyd were referred, and were involved at various stages in one or another of the aspects of the testing.

Some of the genetic testing results were normal. Those findings were reported to Dr. Diaz along with the information that a fluorescent banding study was being performed and was not complete. Dr. Diaz was advised that he would be informed if the results were abnormal. Dr. Diaz was never provided any results of any abnormality.

In the absence of any negative information, Dr. Diaz assured the Lloyds that Michael's abnormalities were an accident of nature, rather than the result of a genetic defect. Dr. Diaz recommended that the Lloyds have another child. For present purposes, the last date of provision of health care to the Lloyds was December 31, 1978.

Acting on the advice, the Lloyds proceeded with family plans. Mrs. Lloyd became pregnant twice in 1982 but both pregnancies ended in miscarriages. On December 24, 1983 Brandon Lloyd was born. He suffers from the identical physical and mental abnormalities as Michael.

The Lloyds initiated genetic testing of Brandon. Those tests revealed a genetic abnormality. The Lloyds then requested that the same laboratory evaluate the raw data from the chromosome studies that had been earlier performed upon Michael. The evaluation showed that Michael had the same genetic abnormality, and that both children had inherited the abnormality through the mother. It appears that through a personnel change or other error, the late 1970's fluorescent banding studies of Michael, which revealed the genetic defect, were never communicated either to the Lloyds or Dr. Diaz.

The Lloyds initiated a medical malpractice action against the appellees, which was filed within two years after Brandon's birth. Mr. and Mrs. Lloyd brought suit on their own behalf for the "wrongful birth" of Brandon, in which they claimed damages for the extraordinary expenses required to care for Brandon and damages for their own mental anguish. They also brought suit for "wrongful life" on behalf of Brandon.

The trial court dismissed Brandon's claims for wrongful life for failure to state a cause of action. The court entered summary judgment against Mr. and Mrs. Lloyd on the basis of the statute of limitations. The court also ruled that, in any event, Mr. and Mrs. Lloyds' claims for mental anguish were not cognizable in the "wrongful birth" action.

We first consider the statute of limitations issue. Insofar as pertinent here, paragraph 95.11(4)(b), Florida Statutes (1985), provides:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.

(Emphasis added). ¹ As the last health advice was given to the Lloyds at the end of 1978, and suit was not filed until 1985, the trial court concluded that the action was barred by the four-year statute of repose.

The effect of the trial court's ruling was to hold that the limitation period expired before Brandon was born. Under that approach, the limitation period expired before the Lloyds had experienced any injury and before they had any awareness of a possible claim.

Dispositive for present purposes is our court's decision in Williams v. Spiegel, 512 So.2d 1080 (Fla. 3d DCA 1987), quashed in part on other grounds, 545 So.2d 1360 (Fla.1989). There the court defined "incident" as "an injury caused by medical malpractice...." Id. at 1081 (emphasis added); accord Elliot v. Barrow, 526 So.2d 989 (Fla. 1st DCA), review denied, 536 So.2d 244 (Fla.1988); Scherer v. Schultz, 468 So.2d 539 (Fla. 4th DCA 1985); Florida Patient's Compensation Fund v. Tillman, 453 So.2d 1376 (Fla. 4th DCA 1984), aff'd on this issue, 487 So.2d 1032 (Fla.1986). See generally Jackson v. Georgopolous, 552 So.2d 215 (Fla. 2d DCA 1989) (Lehan, J. concurring specially). Until Mrs. Lloyd gave birth to a live baby, Brandon, the Lloyds had suffered no injury. The relevant moment for purposes of the statute was the date of the child's birth. The lawsuit was therefore timely.

Appellees argue that the statutory "incident or occurrence" should be interpreted to mean the erroneous medical advice, rather than the birth of Brandon. Appellees rely in part on Carr v. Broward County, 541 So.2d 92 (Fla.1989), but Carr is consistent with the approach we take here. In Carr the Florida Supreme Court held that the seven-year statute of repose could constitutionally be applied to bar an action for medical malpractice. ² In that case "the brain damage injury to the Carr infant was a completed fact at the time of birth...." 541 So.2d at 94. The allegations of negligence in that case included claims for negligent prenatal and obstetrical care, as well as care rendered during birth. In the present case, as in Carr, the "occurrence" for purposes of the statute of repose was the birth of the infant. See also Nardone v. Reynolds, 333 So.2d 25, 40 (Fla.1976) ("The nature of the infant's condition was patent in 1965, before his discharge from the hospital...."); Barron v. Shapiro, 565 So.2d 1319, 1321 (Fla.1990) ("Applying the principle of Nardone to the facts of this case, it is apparent that the Shapiros were on notice of Mr. Shapiro's injury by at least December 31, 1979. As Mrs. Shapiro put it, her husband went in for an operation on his colon and came out blind.").

Appellees also rely on cases decided under the statute of limitations for products liability actions, and in particular Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985), appeal dismissed, 475 U.S. 1114, 106 S.Ct. 1626, 90 L.Ed.2d 174 (1986). The approach we take is, however, consistent with Pullum. There the plaintiff was injured prior to the expiration of the twelve-year statute of repose set forth in subsection 95.031(2), Florida Statutes (1979), but did not bring suit until two years after expiration of the statute of repose. 476 So.2d at 658-59. Although the court upheld the statute of repose, it distinguished Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981). 476 So.2d at 659 fn. The court stated, in part:

In Diamond, the defective product, a drug known as diethylstilbestrol produced by Squibb, was ingested during plaintiff mother's pregnancy shortly after purchase of the drug between 1955-1956. The drug's effects, however, did not become manifest until after plaintiff daughter reached puberty. Under these circumstances, if the statute applied, plaintiffs' claim would have been barred even though the injury caused by the product did not become evident until over twelve years after the product had been ingested. The legislature, no doubt, did not contemplate the application of this statute to the facts in Diamond. Were it applicable, there certainly would have been a denial of access to the courts.

476 So.2d at 659 fn.

While a different statute applies to the present case, the reasoning of Pullum lends support to the statutory construction we adopt here. Under familiar principles of statutory construction, we are obliged to adopt the construction which will render the statute constitutional, rather than unconstitutional. See, e.g., Sandlin v. Criminal Justice Standards & Training Comm'n, 531 So.2d 1344, 1346 (Fla.1988); Emhart Corp. v. Brantley, 257 So.2d 273, 275 (Fla. 3d DCA 1972). The interpretation we have adopted is, in our view, logical and avoids a construction which would otherwise render the statute infirm under article I, section 21 of the Florida Constitution. As the action was not time-barred, we reverse the summary judgment.

We next consider the trial court's order striking Mr. and Mrs. Lloyd's claim for mental anguish. The Florida Supreme Court recognized a cause of action for the wrongful birth of a...