Tanner v. Hartog

• Decision Date: 26 June 1996
• Docket Number: No. 95-00949,95-00949
• Citation: 678 So.2d 1317
• Parties: 21 Fla. L. Weekly D1515 James R. TANNER, Appellant, v. Ellie M. HARTOG, M.D., Alberto Duboy, M.D., Hartog and Duboy, P.A., and Lakeland Regional Medical Center, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1317

678 So.2d 1317

21 Fla. L. Weekly D1515

James R. TANNER, Appellant, v. Ellie M. HARTOG, M.D., Alberto Duboy, M.D., Hartog and Duboy, P.A., and Lakeland Regional Medical Center, Inc., Appellees.

No. 95-00949.

District Court of Appeal of Florida,

Second District.

June 26, 1996.

Kennan George Dandar of Dandar & Dandar, P.A., Tampa, for Appellant.

Philip D. Parrish of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for Appellees Ellie M. Hartog, M.D., and Hartog and Duboy, P.A.

Thomas M. Hoeler and Jerry L. Newman of Shear, Newman, Hahn & Rosenkranz, P.A., Tampa, for Appellees Alberto Duboy, M.D., and Hartog and Duboy, P.A.

Kevin C. Knowlton and Stephen R. Senn of Peterson, Myers, Craig, Crews, Brandon, & Puterbaugh, P.A., Lakeland, for Appellee Lakeland Regional Medical Center, Inc.

PATTERSON, Judge.

This litigation ensued when Phyllis Tanner experienced a stillbirth during her forty-first week of pregnancy. Her husband, James Tanner, appeals from the dismissal of his claims with prejudice for the destruction of his living tissue, negligent stillbirth, and loss of consortium. We affirm the trial court, but certify to the Florida Supreme Court the question of whether Florida law allows a cause of action for emotional damages resulting from a stillbirth caused by the negligent act of another.

On August 1, 1990, the Tanners filed a medical malpractice action against the physicians and hospital involved in the stillbirth. Phyllis Tanner sought damages individually. James Tanner sought damages individually and as the personal representative of the child's estate. In their complaint, they alleged: "Not until December 29, 1989, did the Plaintiffs know or should have known that the actions and inactions of the Defendants fell below the standard of care recognized in the community." All defendants moved to dismiss, asserting that the medical malpractice statute of limitations had run on the face of the complaint. The trial court granted the motions with prejudice. This court affirmed in Tanner v. Hartog, 593 So.2d 249 (Fla. 2d DCA 1992) (Patterson, J., dissenting with opinion) (Tanner I).

In Tanner v. Hartog, 618 So.2d 177 (Fla.1993) (Tanner II), the supreme court quashed Tanner I with respect to when the statute of limitation began to run and interpreted Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), to ease its sometimes harsh results. Tanner II held that "the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice." 618 So.2d at 181 (footnote omitted). The supreme court remanded to this court for a determination as to whether the complaint stated a cause of action under the law of this state.

We addressed that issue in Tanner v. Hartog, 630 So.2d 1136 (Fla. 2d DCA 1993) (Tanner III), review denied, 632 So.2d 1028 (Fla.1994), and held:

1. The complaint stated a cause of action on behalf of Phyllis Tanner, citing Singleton v. Ranz, 534 So.2d 847 (Fla. 5th DCA 1988), review denied, 542 So.2d 1334 (Fla.1989).

2. The complaint did not state a recognized cause of action for the wrongful death of the fetus, citing Stern v. Miller, 348 So.2d 303 (Fla.1977).

We then remanded to the trial court for further proceedings.

On May 26, 1994, the Tanners filed a second amended complaint in four counts. In count I, Phyllis Tanner asserted a claim for negligent stillbirth and the destruction of her living tissue. In count II, James Tanner attempted to duplicate Phyllis' claim, asserting that the fetus was also his living tissue. Counts III and IV were respective loss of consortium claims. On motion of the defendants, the trial court dismissed that complaint on September 26, 1994. In the order of dismissal, the trial court specifically rejected the concept that the fetus was James Tanner's living tissue.

On October 6, 1994, the Tanners filed a third amended complaint in five counts. Counts I and II restated Phyllis' claim and simply separated the doctors from the hospital in separate counts. In count III, James Tanner attempted to assert a claim for mental pain and anguish damages on a theory of negligent stillbirth and having witnessed the stillbirth of the fetus. He eliminated his claim that the fetus was his living tissue. Counts IV and V restated the respective loss of consortium claims. All defendants moved to dismiss. On February 22, 1995, the trial court:

--dismissed count I (Phyllis) without prejudice;

--denied the motion as to count II (Phyllis);

--dismissed count III (James) with prejudice, citing Stern v. Miller, 348 So.2d 303 (Fla.1977);

--dismissed count IV (consortium claim of Phyllis) with prejudice as being derivative of count III; and

--dismissed count V (consortium claim of James) with prejudice based on the statute of limitations, finding that the claim first appeared in the second amended complaint and did not relate back to the filing date of the original complaint.

James Tanner (Tanner) appeals from both the orders of September 26, 1994, and February 22, 1995. Phyllis Tanner is not a party to this appeal.

TANNER'S LOSS OF CONSORTIUM CLAIM

Tanner first pleaded his loss of consortium claim in the second amended complaint. As a new and separate cause of action, it does not relate back to the date of the filing of the original complaint. See West Volusia Hosp. Auth. v. Jones, 668 So.2d 635 (Fla. 5th DCA 1996); Daniels v. Weiss, 385 So.2d 661 (Fla. 3d DCA 1980). Applying the test set out in Tanner II for determining when the medical malpractice statute of limitations is triggered, Tanner brought his loss of consortium claim after the statute had run. We therefore affirm the dismissal of that claim with prejudice.

TANNER'S "LIVING TISSUE OF HIS BODY" CLAIM

In the second amended complaint, Tanner sought damages for mental pain and anguish, contending that the fetus was the living tissue of his body. In so doing, he attempts to emulate Phyllis Tanner's cause of action which we approved in Tanner III. The court in Singleton v. Ranz, 534 So.2d 847, 847-48 (Fla. 5th DCA 1988), described that cause of action:

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 (§ 768.19, Fla.Stat.); therefore it is living tissue of the body of the mother for the negligent or intentional tortious injury to which the mother has a legal cause of action the same as she has for a wrongful injury to any other part of her body.

(Footnotes omitted.) Tanner argues that, as the biological father of the fetus, it is his living tissue as well as that of the mother. On that assumption, he concludes that he has an equal right of recovery under Singleton. It could be argued that, having pleaded these facts, dismissal was improper and the question of whether the fetus is his living tissue would be subject to expert testimony from the scientific community. In our view, he has misconstrued the nature of the tort upon which he seeks recovery. While the fetus may be the living tissue of the mother, the tort is not committed on that living tissue but rather upon the mother's body. We explained in McGeehan v. Parke-Davis, a Division of Warner-Lambert Co., 573 So.2d 376, 377 (Fla. 2d DCA), review denied, 583 So.2d 1036 (Fla.1991), that "[a]s Singleton recognized, the wrongfully caused loss of a fetus is a legally cognizable bodily injury to the woman whose body suffers the loss." While Tanner may argue that the fetus is his living tissue, he cannot argue that it is part of his body; thus, we affirm the dismissal of this claim with prejudice.

TANNER'S CLAIM FOR "NEGLIGENT STILLBIRTH"

In count III of the third amended complaint, Tanner attempts to allege a cause of action for mental pain and anguish, unaccompanied by impact or physical injury, resulting from the negligent care and treatment of his wife, which resulted in the stillbirth of his child.

Several jurisdictions, which like Florida do not recognize a fetus as a "person" for the purpose of the Wrongful Death Act, recognize a cause of action on behalf of both parents for medical malpractice which causes a stillbirth. In Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988), Mrs. Bennett went into labor when she was three weeks past her delivery date, was admitted to the hospital, and her baby was stillborn. She and her husband sued her physician, contending that the stillbirth was the result of his negligent care and treatment during her pregnancy. In recognizing their cause of action for emotional damages, the Supreme Court of New Jersey said:

We conclude that the medical malpractice causing an infant stillbirth constitutes a tort against the parents, entailing the direct infliction of injury, their emotional distress and mental suffering, for which they are entitled to recover compensatory damages.

....

Medical malpractice causing a stillbirth results in infliction of a direct injury to the mother as well as to her unborn child. Even without any permanent physical harm, the mother suffers severe and genuine injuries in the form of emotional distress and mental anguish occasioned by her baby's stillbirth. This suffering is experienced, also, by the father of the infant. Thus, in a case such as this, the injury suffered by the mother and the father on the stillbirth of their eagerly expected first child is palpable and predictable.

545 A.2d at 139-40. The Giardina court was "satisfied that our common law has evolved to a point that would recognize a valid cause of action for the emotional injuries suffered by parents in this kind of a case." 545 A.2d at 142. Accord ...