616 So.2d 415 (Fla. 1992), 76476, Kush v. Lloyd

Docket Nº:76476, 77135, 77192 and 77193.
Citation:616 So.2d 415, 17 Fla. L. Weekly S 730
Party Name:Arthur W. KUSH, M.D., Petitioner, v. Brandon David LLOYD, etc., et al., Respondents. NORTH BROWARD HOSPITAL DISTRICT, et al., Petitioners, v. Brandon David LLOYD, etc., et al., Respondents. Arthur A. MAISLEN, M.D., et al., Petitioners, v. Brandon David LLOYD, etc., et al., Respondents. Pedro A. DIAZ, M.D., Petitioner, v. Brandon David LLOYD, etc.,
Case Date:December 03, 1992
Court:Supreme Court of Florida

Page 415

616 So.2d 415 (Fla. 1992)

17 Fla. L. Weekly S 730

Arthur W. KUSH, M.D., Petitioner,


Brandon David LLOYD, etc., et al., Respondents.



Brandon David LLOYD, etc., et al., Respondents.

Arthur A. MAISLEN, M.D., et al., Petitioners,


Brandon David LLOYD, etc., et al., Respondents.

Pedro A. DIAZ, M.D., Petitioner,


Brandon David LLOYD, etc., et al., Respondents.

Nos. 76476, 77135, 77192 and 77193.

Supreme Court of Florida.

December 3, 1992

Rehearing Denied March 4, 1993.

Page 416

Debra J. Snow and Robert M. Klein of Stephens, Lynn, Klein & McNicholas, P.A., Miami, on behalf of Arthur W. Kush, M.D.

Steven R. Berger of Wolpe, Leibowitz, Berger & Brotman, Miami, and Billing, Cochrane, Heath, Lyles & Mauro, Fort Lauderdale, on behalf of North Broward Hosp. Dist.

Steven E. Stark of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, on behalf of Arthur A. Maislen, M.D., et al.

Donald G. Korman of Korman, Schorr & Wagenheim, P.A., Fort Lauderdale, on behalf of Pedro A. Diaz, M.D., et al.

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin and Perwin, P.A., Miami, Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, and Edna L. Caruso, P.A., West Palm Beach, for respondents.

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We have for review Lloyd ex rel. Lloyd v. North Broward Hospital District, 570 So.2d 984, 990 (Fla.3d DCA 1990), which certified the following question of great public importance: 1

In a case involving negligent failure to diagnose an inheritable genetic impairment, is the resulting cause of action for wrongful birth extinguished by the four-year statute of repose if the genetically impaired child is born more than four years after the negligent diagnosis?

The district court also certified conflict with Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981). We have jurisdiction. Art. V, Sec. 3(b)(3), (4), Fla. Const.

In 1976, Diane Lloyd gave birth to a deformed son. Her pediatrician, Dr. Pedro Diaz, later referred her and her husband, Anthony Lloyd, for genetic testing. The physician who coordinated the testing was Dr. Arthur Maislen. After the tests were performed, Dr. Maislen advised Dr. Diaz that no genetic abnormalities had been found. However, one particular test--a fluorescent banding study--had not yet been completed. Dr. Maislen said he would contact Dr. Diaz if any abnormality was revealed by this last test. Subsequently, Dr. Maislen was replaced by Dr. Juliet Hananian. For undetermined reasons, the results of the fluorescent banding study were never transmitted to Dr. Diaz.

Based on the information given him, Dr. Diaz informed the Lloyds that their son's impairment was an accident of nature, not a genetic defect. Dr. Diaz told the Lloyds they could have another child without incident. Dr. Diaz ceased providing medical care to the Lloyds on December 31, 1978. The Lloyds later received medical care from Dr. Arthur Kush.

Subsequently, Diane Lloyd became pregnant twice, with both pregnancies ending in miscarriages. However, on December 24, 1983, she gave birth to a second son, Brandon David Lloyd, who had the same deformities as the first child. Subsequent testing at a genetics laboratory disclosed that Brandon had a genetic abnormality called 10p trisomy. The Lloyds forwarded the earlier chromosome studies of their first son to the same genetics laboratory, which determined that he also suffered from 10p trisomy. Tests disclosed the condition was inherited from the mother.

The Lloyds filed suit on December 24, 1985, against the various practitioners and entities involved. They asserted claims for wrongful birth 2 and wrongful life, 3 and sought recovery for the extraordinary expenses associated with Brandon's medical condition. They also sought damages for the mental anguish experienced by the family.

The trial court struck Brandon's entire claim and also struck the parents' claim for mental anguish. Subsequently, the trial court granted a defense motion asserting that the claims against most of the defendants

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were barred by the statute of repose. After this action, the only pending claim was against Dr. Kush, who had rendered care and treatment to the Lloyds within four years preceding the lawsuit.

On appeal, the Third District Court of Appeal first determined that the statute of repose began to run when Brandon was born, not when the Lloyds were advised they could have more children safely. Thus, the district court concluded, the trial court should not have dismissed the claims on this basis. The district court found that any other holding would violate the right of access to courts. Lloyd, 570 So.2d at 986-87.

Second, the district court found that the parents had stated a valid claim for mental anguish because (a) mental anguish was a natural consequence of the tort of wrongful birth recoverable whether or not there was an impact, or (b) the Lloyds had suffered an "impact" in the form of two miscarriages and the birth of a deformed child. The district court certified conflict with Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981), which had reached a contrary result. Lloyd, 570 So.2d at 988-89.

Third, the district court held that Brandon's claim for general damages for wrongful life was properly stricken. Fourth, the district court determined that Brandon's claim for special damages for wrongful life actually was a claim of the parents, based on their legal duty to care for a mentally deficient child even in adulthood. Thus, the court concluded, Brandon's entire claim was properly stricken. Id. at 989-90. On rehearing, the district court certified that its interpretation of the statute of repose presented a question of great public importance. Id. at 990.


The statute of repose at issue here provides in pertinent part:

(b) 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. An "action for medical malpractice" is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.

Sec. 95.11(4)(b), Fla.Stat. (1985). Petitioners argue that this language means the statute runs from the date negligent advice was given, not from the date of Brandon David Lloyd's birth. We agree.

There is considerable misunderstanding of the relationship between statutes of limitation and statutes of repose. A statute of limitation begins to run upon the accrual of a cause of action except where there are provisions which defer the running of the statute in cases of fraud or where the cause of action cannot be reasonably discovered. On the other hand, a statute of repose, which is usually longer in length, runs from the date of a discrete act on the part of the defendant without regard to when the cause of action accrued. This is explained by W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 30, at 168 (5th ed. 1984), as follows:

A statute of repose generally begins to run at an earlier date and runs for a longer period of time than the otherwise applicable statute of limitations unaffected by the discovery accrual rule. Repose statutes may begin to run from the time of the defendant's act or neglect, as in the medical malpractice context, or upon the occurrence of a specific and identifiable event shortly thereafter--as from the substantial completion of the structure, in actions against architects and contractors, or from the manufacture or sale of the product, in products liability cases. Statutes of repose by their nature reimpose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists, and their constitutionality

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has been challenged on a variety of state and federal grounds. Although some of the statutes have been declared unconstitutional, the courts in most jurisdictions have upheld their statutes and the legislatures in those that have not have sometimes reenacted new repose legislation that has withstood constitutional attack.

(Footnotes omitted.) See also 2 Steven E. Pegalis & Harvey F. Wachsman, American Law of Medical Malpractice Sec. 6.7, at 20 (1981) ("Most states providing 'discovery' accrual provisions impose a cap which in effect provides that in no event may lack of discovery extend a time limitation beyond a certain number of years from the negligent act or omission.").

The proper application of Florida's statute of repose in medical malpractice actions is illustrated in Carr v. Broward County, 505 So.2d 568 (Fla. 4th DCA 1987), approved, 541 So.2d 92 (Fla.1989). The complaint in Carr charged that a child who was born on December 20, 1975, suffered brain damage as a result of negligent care by the hospital and attending physicians at birth. The complaint was not filed until September 26, 1985, but the plaintiffs alleged that they were unable to discover the negligence until shortly before filing suit and that in any event the defendants had fraudulently concealed the pertinent facts. The issue in the case was whether or not suit was barred by the statute of repose.

The trial court had dismissed the action. At the outset of its opinion, the Fourth District Court of Appeal stated:

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