Kush v. Lloyd
616 So. 2d 415, 1992 WL 354441 (1992)
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Rule of Law:
The four-year statute of repose for medical malpractice begins to run from the date of the negligent act or omission, not from the date the resulting injury occurs, and can extinguish a cause of action before it accrues. In a viable wrongful birth claim, parents may recover damages for mental anguish without satisfying the impact doctrine and may also recover the extraordinary costs of caring for the impaired child throughout the child's life expectancy.
Facts:
- In 1976, Diane and Anthony Lloyd's first son was born with deformities.
- Their pediatrician, Dr. Pedro Diaz, referred them for genetic testing, which was coordinated by Dr. Arthur Maislen.
- After initial tests, Dr. Maislen informed Dr. Diaz that no genetic abnormalities had been found, but the results of a final test—a fluorescent banding study—were never transmitted to Dr. Diaz.
- Based on this incomplete information, Dr. Diaz advised the Lloyds that their son's condition was a non-genetic 'accident of nature' and they could have another child without risk of the same deformities.
- Dr. Diaz ceased providing medical care to the Lloyds on December 31, 1978.
- On December 24, 1983, more than four years after Dr. Diaz's advice, Diane Lloyd gave birth to a second son, Brandon David Lloyd, who suffered from the same deformities as their first child.
- Subsequent testing confirmed both children had a genetic abnormality called 10p trisomy, which was inherited from their mother, Diane Lloyd.
Procedural Posture:
- On December 24, 1985, the Lloyds sued Dr. Diaz and other medical providers in a Florida trial court, asserting claims for wrongful birth and wrongful life.
- The trial court struck the child's claims entirely and the parents' claim for mental anguish.
- The trial court then granted summary judgment for most defendants, including Dr. Diaz, ruling the claims were barred by the four-year medical malpractice statute of repose.
- The Lloyds (appellants) appealed to the Florida Third District Court of Appeal.
- The Third District Court of Appeal reversed the trial court, holding that the statute of repose did not begin to run until the child, Brandon, was born, thus making the lawsuit timely.
- The Third District Court of Appeal then certified a question of great public importance to the Supreme Court of Florida regarding the application of the statute of repose.
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Issue:
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?
Opinions:
Majority - Per Curiam
Yes. A cause of action for wrongful birth is extinguished by the four-year statute of repose if the child is born more than four years after the negligent diagnosis because the statute runs from the date of the negligent act, not from when the injury occurs. A statute of repose is distinct from a statute of limitation; it is an absolute time limit that runs from a specific event, such as the 'incident of malpractice,' regardless of when the cause of action accrues or is discovered. Citing Carr v. Broward County and University of Miami v. Bogorff, the court affirmed that a statute of repose can constitutionally bar a cause of action even before it legally exists (i.e., before damages have occurred). The legislature made a policy decision to balance the rights of injured parties against the need for finality for health care providers, and the court will not second-guess that judgment.
Dissenting - Kogan, J.
No. A cause of action for wrongful birth should not be extinguished because the statute of repose should not begin to run until the injury itself occurs, which in a wrongful birth case is the birth of the child. The statutory term 'incident' is ambiguous and could reasonably mean either the negligent act or the resulting injury. When a statute limiting an action is ambiguous, it should be resolved in favor of allowing the longer period. The majority's holding improperly bars a claim before it even exists, as there is no injury, and thus no cause of action for 'wrongful birth,' until the child is actually born.
Dissenting - McDonald, J.
No, on the issue of damages. While concurring that the statute of repose bars the claim, this dissent argues that damages in wrongful birth cases should be limited to actual economic loss and should not include intangible damages for mental anguish. Allowing recovery for grief without a physical injury is a major departure from Florida's impact doctrine and will have a chilling effect on medical advice related to family planning. The legislature should address whether such damages are appropriate.
Analysis:
This decision solidifies the harsh and absolute nature of Florida's medical malpractice statute of repose, firmly distinguishing it from a more flexible statute of limitation. By holding that the repose period begins with the negligent act, the court confirms that a right to sue can be extinguished before the injury even materializes, prioritizing finality for medical providers over redress for plaintiffs with latent injuries. Paradoxically, while closing the courthouse doors for the Lloyds, the opinion significantly expands the scope of damages for plaintiffs who file timely wrongful birth claims by allowing recovery for parental mental anguish without physical impact and for the child's lifetime extraordinary care costs. The case thus creates a dichotomy of a strict procedural bar on timing but broad substantive recovery for those who clear it.
