McGeehan v. Parke-Davis, Div. of Warner-Lambert Co., PARKE-DAVIS

• Decision Date: 11 January 1991
• Docket Number: No. 90-00881,WARNER-LAMBERT,PARKE-DAVIS,90-00881
• Parties: 16 Fla. L. Weekly 170 Therese McGEEHAN, Appellant, v., a DIVISION OFCOMPANY, a foreign corporation; Pinellas County Health Department and Department of Health and Rehabilitative Services of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 376

573 So.2d 376

16 Fla. L. Weekly 170

Therese McGEEHAN, Appellant, v. PARKE-DAVIS, a DIVISION OF WARNER-LAMBERT COMPANY, a foreign corporation; Pinellas County Health Department and Department of Health and Rehabilitative Services of the State of Florida, Appellees.

No. 90-00881.

District Court of Appeal of Florida,

Second District.

Jan. 11, 1991.

Rehearing Denied Jan. 31, 1991.

Denise L. McCain and David T. Henniger of Greene & Mastry, P.A., St. Petersburg, for appellant.

Chester L. Skipper of Lyle & Skipper, P.A., St. Petersburg, for appellee Parke-Davis.

A. Wade James of Hampp & Schneikart, P.A., St. Petersburg, for appellees Pinellas County Health Dept. and Dept. of Health & Rehabilitative Services.

LEHAN, Judge.

We reverse the trial court's summary judgment in favor of defendants in this action for damages to plaintiff resulting from the loss of her fetus in an abortion. The abortion was alleged to have been brought about by the risk of birth defects from medication taken by her due to a negligently erroneous diagnosis that she suffered from tuberculosis, the medication having been allegedly prescribed and dispensed to her without a warning about the risk of birth defects therefrom. The summary judgment cited as authority Henderson v. North, 545 So.2d 486 (Fla. 1st DCA 1989) and Abdelaziz v. A.M.I.S.U.B. of Florida, Inc., 515 So.2d 269 (Fla. 3d DCA 1987), with both of which the trial court expressed disagreement.

The issue on appeal is whether the cause of action in this case is, as argued by defendants and apparently found by the trial court, for "the wrongful death of the fetus and the plaintiffs' mental suffering associated therewith," quoting Abdelaziz, 515 So.2d at 272, which was the type of cause of action held in that case and in Henderson to be not cognizable under the wrongful death statute. Id. We conclude that is not the cause of action in this case. In our view the cause of action in this case is, as argued by plaintiff, cognizable as a cause of action for bodily injury to the plaintiff, as she specifically alleged, and her mental suffering associated therewith. Singleton v. Ranz, 534 So.2d 847 (Fla. 5th DCA 1988). In fact, she has not alleged that she has a cause of action under the wrongful death statute. As Singleton said An unborn fetus is either a new and separate human being or "person," temporarily residing within the womb of the host mother, OR it is a part of the mother's body, OR both. The Florida Supreme Court has held that, in legal contemplation, an unborn fetus is not a person for the wrongful death of whom a tortfeasor is liable to its survivors for damages under the Wrongful Death Act ... therefore, it is living tissue of the body of the mother for the negligent or intentional tortious injury to which the mother...