ANTHONY N. DINATALE; KATHRYN LYNN DINATALE, APPELLANTS,
v.
ROBERT A. LIEBERMAN, M.D.; SUNLAND REGIONAL CENTER AT ORLANDO, ETC., ET AL., APPELLEES; SUSAN CAROL ALLEN, ETC., ET AL., APPELLANTS, V. COLONIAL LABORATORY, INC., ETC., ET AL., APPELLEES
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In consolidated appeals, the Fifth District Court of Appeal addressed whether parents can sue a physician for damages from prenatal negligence. The court rejected a "wrongful life" cause of action by the child but recognized a viable "wrongful birth" claim by parents seeking damages for extraordinary care expenses of a defective child born due to the defendant's negligent failure to diagnose or inform.
A child born with defects has no cause of action for "wrongful life." However, parents have a viable "wrongful birth" cause of action if they can prove the child will require extraordinary care and that the defendant's negligence caused or will cause them to incur expenses for that extraordinary care. Fathers have an individual right to seek such damages, not dependent on the mother's cause of action, as they share the legal obligation to support the child and have a right to participate in reproductive decisions.
[1] A child born with physical or mental defects does not have a cause of action for wrongful life.
[2] Parents may have a cause of action for wrongful birth based on a healthcare provider's negligence in failing to diagnose and inform them of a defective child's impending…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a child born with physical or mental defects does not have a cause of action against anyone on account of his having been born. Neither this court nor any other court in Florida recognizes a "wrongful life" cause of action.”
Establishes that wrongful life claims are not recognized in Florida law
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceChildren were born with physical or mental defects allegedly resulting from prenatal negligence by physicians and a laboratory that failed to properly…
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DAUKSCH, Chief Judge.
In these consolidated appeals the principal question for our review is the right of a child and its parents to sue a physician or other health care provider for damages allegedly suffered as a result of pre-natal negligence of the defendant. As we held in Moores v. Lucas, 405 So. 2d 1022 (Fla. 5th DCA 1981), a child born with physical or mental defects does not have a cause of action against anyone on account of his having been born. Neither this court nor any other court in Florida recognizes a “wrongful life” cause of action.1
The fathers’ viable causes of action in this appeal are predicated upon a “wrongful birth” theory which is based upon the alleged negligence of a physician or laboratory in failing to properly diagnose and inform the parents of the impending birth of a defective child, thus giving them the choice to terminate the pregnancy. Even though a father has no legally enforceable right to either compel or prevent an abortion, he has a right to participate in the decision. § 390.001(4)(b), Florida Statutes (1981)2; See, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); See also, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). He shares the mother’s right to seek damages for the negligent wrongful birth because he shares the legal obligation to provide for the child’s care and support. See, §§ 61.09 and 27.04-.06, Florida Statutes (1981); Variety Children’s Hospital, Inc. v. Vigliotti, 385 So. 2d 1052 (Fla. 3d DCA 1980). The father’s right is not dependent upon the mother’s cause of action but is his individually.
If either parent can prove that the child will require extraordinary care in the future and that the negligence of the defendant caused, or will in the future cause, the parent to incur expenses for that extraordinary care, then the parent is entitled to recover damages in court for those extraordinary expenses. Moores. Because there are allegations of such negligence and of extraordinary expenses which will be incurred we reverse those portions of the trial court’s orders which dismissed the fathers’ claims. The plaintiffs and defendants should be permitted to file amended pleadings to conform with the Moores decision and with this decision, if they file a timely motion to do so.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur. . “Wrongful life” has been defined as the child’s cause of action for having been born deformed, and “wrongful birth” as the parents’ cause of action for the expenses of caring for the defective child. Curlender v. Bioscience Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (1980).
. Section 390.001(4)(b) which requires that a husband be given notice of a proposed abortion, was not effective until after the pregnancies in question here. It was passed to replace a prior provision requiring the husband’s consent to an abortion, which was declared unconstitutional in Coe v. Gerstein, 376 F.Supp. 695 (S.D.Fla.1973) aff’d, 517 F. 2d 787 (5th Cir. 1975), affm’d., 428 U.S. 901, 94 S.Ct. 2247, 41 L.Ed.2d 70 (1976).
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Cited By
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Allen v. Robert T. Hoover, M.D., 489 So. 2d 1160 (Fla. 5th DCA 1986)…deformed and retarded infant, Michael Jacob Allen. The Al-lens’ initial complaint was dismissed by the trial court, and, in a consolidated appeal, this court affirmed the lower court in part and reversed and remanded in part. Dinatale v. Lieberman, 409 So. 2d 512 (Fla. 5th DCA 1982).1 Upon remand, the Allens filed an amended complaint which alleged that Susan Allen consulted with appellees regarding her exposure to rubella and the potential threat it posed to her unborn child. The Allens further alleged that…
Authorities Cited
- Griswold v. Connecticut, 381 U.S. 479 (U.S. 1965)
- Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (U.S. 1976)
- Variety Child's. Hosp., Inc. v. Vigliotti, 385 So. 2d 1052 (Fla. 3d DCA 1980)
- POE v. Gerstein, 417 U.S. 281 (U.S. 1974)
- POE v. Gerstein, 517 F.2d 787 (5th Cir. 1975)
- Slone v. Deskins Branch Coal Co., 428 U.S. 901 (U.S. 1976)
- Beal v. Franklin, 428 U.S. 901 (U.S. 1976)
- Dawson v. C. E. Sheppard Roofing, Inc., 405 So. 2d 1022 (Fla. 3d DCA 1981)
- Moores v. Charles S. Lucas, M.D., 405 So. 2d 1022 (Fla. 5th DCA 1981)