The 4th DCA reversed a Medical Malpractice award of $2.5 million to a woman who gave birth to a baby boy with severe deformities. Unlike cases brought for Wrongful Death, where the Plaintiff seeks damages for the loss of a loved one, this case was brought for a wrongful birth. The purpose of a wrongful birth claim is to recover economic damages for the extraordinary expense of caring for the impaired or deformed child.
The facts are that Ana Mejia gave birth to Bryan Santana on Oct. 15, 2008. Bryan was born with no hands, one leg and a fraction of a foot attached to his hip. Prior to the delivery Mejia had two ultrasounds in June 2008 and was assured that the fetus was developing normally. Mejia’s second ultrasound was performed one day into the third trimester.
Following the birth of her son, Mejia Mejia sued for wrongful birth. Mejia alleged that had she known of the birth defects, she would have terminated her pregnancy. Again, like the majority of medical malpractice cases, this case was brought for a failure to diagnose or failure to discover a condition. These are referred to as failure to treat or failure to diagnose cases, and are far more common than those where the doctor or nurse is sued for an act of commission.
The question in this case was not whether the doctor’s fell below the standard of care (committed medical malpractice) in reading the ultrasound, but whether it would have made a difference. Specifically, whether it was too late (3rd trimester) for Mejia to get an abortion. Thus, the issue on appeal was whether the trial court was correct in not allowing the defendants to introduce evidence that most third trimester abortions are illegal in Florida.
The parties argued at trial on how to calculate the age of the fetus. Ultimately the 4th DCA ruled that the trial court should have relied on the gestational age based on Mejia’s last menstrual period, and thus should have been able to present evidence that most third trimester abortions are illegal in Florida.
Given the courts ruling on gestational age the issue at the re-trial will be whether Mejia could have traveled out of state for the abortion. That being said, I would argue that the defendant’s cannot avail themselves of said defense because they scheduled the ultrasound in the 3rd trimester. Thus, what is the point of the ultrasound if it is too late to have an abortion. The defendant’s cannot use the third trimester defense as both a shield and sword.
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Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.