Ob/Gyn Specialists of the Palm Beaches, P.A. v. Mejia

• Decision Date: 31 March 2014
• Docket Number: No. 4D12–42.,4D12–42.
• Citation: 134 So.3d 1084
• Parties: OB/GYN SPECIALISTS OF THE PALM BEACHES, P.A., Perinatal and Gynecologic Specialists of the Palm Beaches, Inc., d/b/a Perinatal Specialists of the Palm Beaches, and Marie Morel, M.D., Appellants, v. Ana MEJIA and Rodolfo Santana, individually, and as parent and natural guardians of Bryan Santana, a minor, Appellees.
• Court: Florida District Court of Appeals

134 So.3d 1084

OB/GYN SPECIALISTS OF THE PALM BEACHES, P.A., Perinatal and Gynecologic Specialists of the Palm Beaches, Inc., d/b/a Perinatal Specialists of the Palm Beaches, and Marie Morel, M.D., Appellants,

v.Ana MEJIA and Rodolfo Santana, individually, and as parent and natural guardians of Bryan Santana, a minor, Appellees.

No. 4D12–42.

District Court of Appeal of Florida,

Fourth District.

Jan. 8, 2014.

Rehearing Denied March 31, 2014.

Rebecca Mercier Vargas and Jane Kreusler–Walsh of Kreusler–Walsh, Compiani & Vargas, P.A., West Palm Beach, and Steven Lubell and Mark L. Rosen of Lubell & Rosen, LLC, Fort Lauderdale, for appellants.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Schuler, Halvorson, Weisser & Zoeller, P.A., West Palm Beach, and Robert T. Bergin, Jr., P.A., West Palm Beach, for appellees.

KLINGENSMITH, J.

Appellants/defendants, OB/GYN Specialists of the Palm Beaches and Marie Morel, M.D., appeal a final judgment awarding appellees/plaintiffs $2.5 million in damages following a jury trial in a medical malpractice action. They contend that the trial court committed reversible error by precluding them from presenting argument and evidence that third trimester abortions are generally illegal in the state of Florida. In support, they claim this information was directly relevant to whether they fell below the standard of care and deprived plaintiffs of the opportunity to obtain an abortion. We agree that the trial court erred in denying the defense the opportunity to argue the application of this law and reverse for a new trial on the issues of liability and causation only.

Plaintiffs are the parents of a child born with significant birth defects. During her pregnancy, the mother suffered from episodes of bleeding and was referred to the hospital for ultrasounds. At the first ultrasound on June 4, 2008, the position of the fetus allowed for only limited views of all four extremities. As such, the ultrasound report noted the anatomy appeared normal, with the qualification that the view was limited due to fetal lie. However, the report noted other abnormalities, prompting the mother's referral to genetic counseling and an additional, more detailed, ultrasound known as a Level II ultrasound.

At the genetic counseling session, plaintiffs were informed about the significance of the abnormalities seen on the prior ultrasound and presented with the option of undergoing amniocentesis to screen for genetic abnormalities. The mother declined the amniocentesis procedure, but returned on June 30, 2008, for the Level II ultrasound as recommended.

The Level II ultrasound report stated that the views of the upper extremities were limited, the hands of the fetus were not visible, and the position of the fetus's feet looked normal. The report also noted that there were “4 limbs.” The impression from the testing indicated that “[t]he anatomy seen on the Level II Ultrasound appears normal. Fetal growth is appropriate. Limited upper extreme [sic], nose, lips.” The mother testified that during this visit she was told that everything was “perfect.”

However, when the mother gave birth on October 15, 2008, she learned for the first time that the baby had no hands, only one leg, and a fraction of a foot attached to the hip on the other leg. Plaintiffs subsequently filed suit against a number of medical providers involved in the mother's prenatal care. The allegation made against Dr. Morel and her employer, OB/GYN Specialists, was that Dr. Morel fell below the standard of care by failing to advise plaintiffs in a timely manner that the fetus had limb defects, thereby preventing them from making an informed decision as to whether they should terminate the pregnancy.

Prior to trial, defendants sought to preclude plaintiffs from presenting any evidence or argument that the Level II ultrasound caused any damages. The defendants cited section 390.0111, Florida Statutes, which, in pertinent part, provides:

(1) TERMINATION IN THIRD TRIMESTER; WHEN ALLOWED.— No termination of pregnancy shall be performed on any human being in the third trimester of pregnancy unless:

(a) Two physicians certify in writing to the fact that, to a reasonable degree of medical probability, the termination of pregnancy is necessary to save the life or preserve the health of the pregnant woman; or

(b) The physician certifies in writing to the medical necessity for legitimate emergency medical procedures for termination of pregnancy in the third trimester, and another physician is not available for consultation.

§ 390.0111(1), Fla. Stat. (2008) (emphasis added). Defendants asserted that using the gestational age ¹ to calculate the weeks of the mother's pregnancy, the Level II ultrasound was performed one day into the mother's third trimester of pregnancy. Therefore, they argued that even if the Level II ultrasound had been reported accurately, the mother could not have obtained a lawful abortion in Florida. Plaintiffs, however, represented that using the date of conception, the mother was not in her third trimester when the Level II ultrasound was performed.

The trial court ruled that any reference or evidence regarding Florida's prohibition against third trimester abortions under section 390.0111, as applied to the Level II ultrasound,² was irrelevant. As the basis for its ruling, the court concluded that: 1) the mother was not in the third trimester of pregnancy, based on counsel's representation regarding the date of conception; 2) admitting evidence of the statute would create a “trial within a trial” regarding whether any exceptions to the statute applied; and 3) the case did not involve a claim that defendants should have performed or recommended termination of the pregnancy.

At trial, plaintiffs' medical expert testified that the ultrasound performed on June 4 fell below the standard of care, was reported inaccurately, and had a negative effect on future ultrasounds. He testified that the June 30 Level II ultrasound was also incorrectly reported. The mother testified that she would have undergone an abortion had she known of the birth defects.

At the end of plaintiffs' case, defendants moved for directed verdict, once again arguing that any alleged acts of negligence occurring in the third trimester, including the alleged misreading of the Level II ultrasound, could not be the legal cause of any damage to plaintiffs because the mother could not have legally terminated her pregnancy at that point in time. The trial court denied the motion, reasoning that the mother could have obtained a legal abortion in another state. Following the adverse jury verdict and final judgment ultimately rendered against the defendants, this timely appeal was taken.

On appeal, defendants assert that the trial court incorrectly ruled section 390.0111 was irrelevant. They maintain that the mother could not have obtained an abortion in Florida as of the date of the Level II ultrasound, arguing that the term “third trimester” as used in section 390.0111, should be calculated using the gestational age. We agree.

Plaintiffs' suit was based on the wrongful birth of their child. “ ‘Wrongful birth’ is that species of medical malpractice in which parents give birth to an impaired or deformed child and allege that negligent treatment or advice deprived them of the opportunity to avoid conception or terminate the pregnancy.” Kush v. Lloyd, 616 So.2d 415, 417 n. 2 (Fla.1992). “Causation can be shown if the plaintiff can prove that she would have obtained an abortion if the doctor had not been negligent.” Campbell v. United States, 795 F.Supp. 1118, 1124 (N.D.Ga.1990); accord Keel v. Banach, 624 So.2d 1022, 1027 (Ala.1993). Therefore, a plaintiff's ability to medically, legally, and logistically undergo such a procedure is clearly relevant to the issue of causation. See, e.g., Davis v. Columbia Hosp. for Women Med. Ctr., Inc., No. 91–16305, 1996 WL 33649490, at *11–12 (D.C.Super.Ct. June 24, 1996) (in wrongful birth action, defendants were free to present evidence that a viable fetus existed on the relevant date and that there was no basis to terminate the mother's pregnancy at that time because of threats to her life or health). Accordingly, whether the mother could have lawfully obtained an abortion at the time the Level II ultrasound was performed was certainly relevant to establish causation, or lack thereof.

Chapter 390's definition section defines “third trimester” as “the weeks of pregnancy after the 24th week of pregnancy.” § 390.011(8), Fla. Stat. (2008). The term “pregnancy” is not defined in Chapter 390. Likewise there are no statutory provisions that define how “weeks of pregnancy” should be calculated. Courts generally interpret the words of a statute by giving them their plain and ordinary meaning. Maxwell v. State, 110 So.3d 958, 961 (Fla. 4th DCA 2013). However, such a construction must be avoided if it leads to an unreasonable result or a result clearly contrary to legislative intent. Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla.2005). Additionally, in considering the meaning of particular words and phrases, courts must also distinguish between terms of art that may have specialized meanings and other words that are ordinarily given a dictionary definition. See, e.g., Vargas v. Enter. Leasing Co., 993 So.2d 614, 618 (Fla. 4th DCA 2008). In the context of the statute under review, “third trimester” is a term that has a particular medical meaning designed to give effect to its application.

To help decipher the phrase “weeks of pregnancy,” for the purpose of determining when the second trimester ends and the third trimester begins, the portion of the Florida Administrative Code pertaining to Medical Screening and Evaluation of Patients Receiving Second Trimester Abortions is instructive. It provides, in pertinent part:

(1) Each abortion clinic that provides second trimester abortions shall formulate and adhere to...