Lead Opinion
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
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
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,
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,
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,
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 written patient care policies and procedures designed to ensure professional and safe care for patients undergoing second trimester abortions and shall maintain a medical record for each such patient that records history, care and services. Any abortion clinic that performs second trimester abortions which is in operation at the time of adoption of this rule shall be given six (6) months within which to comply with these patient care policies and procedures for patients undergoing second trimester abortions, to include but not limited to the following:
(a) Admission criteria and procedures;
(b) Identification in the medical record of physician(s) and nurse(s) involved in providing the services offered for patients undergoing second trimester abortions;
(c) Specific details regarding the preoperative procedures performed, to include:
1. History and physical examination, to include verification of pregnancy, estimation of gestational age, identification of any preexisting conditions or complications; including allergies to medications, antiseptic solutions, or latex; and a complete obstetric and gynecological history.
2. Special examinations, lab procedures, and/or consultations required, to include ultrasonography to confirm gestational age and a physical examination including a bi-manual examination estimating uterine size and palpation of the adnexa. The physician shall keep original prints of each ultrasound examination of a patient in the patient’s medical history file. For an abortion in which an ultrasound examination is not performed before the abortion procedure, urine or blood tests for pregnancy shall be performed before the abortion procedure.
Additional guidance can be gleaned from the Supreme Court cases creating and interpreting the trimester framework upon which the Florida law is based. This framework was first enunciated in Roe v. Wade,
Although plaintiffs suggest that this court calculate “weeks of pregnancy” as used in section 390.011(8)’s definition of “third trimester” from the date of conception, in doing so they also concede that the fetus’s date of conception in this case is unknown, and, in most cases, cannot be reliably ascertained. In fact, nowhere in the administrative code regulating abortion screening and patient evaluation is there any requirement that a physician take steps to estimate or confirm the date of conception, only gestational age. Moreover, physicians may be disciplined for performing a third trimester abortion that does not comply with the statutory regulations governing such a procedure. Pendergraft v. Dep’t of Health,
Even if we were to agree that the statute should be interpreted to measure pregnancy from the alleged time of conception, thereby allowing the mother nearly two weeks after the June 30 Level II ultrasound to obtain a lawful abortion under Florida law, the existence of section 390.0111 would still be relevant to whether the mother could have logistically obtained an abortion in Florida before the statutory deadline. For example, in Hall v. Dartmouth Hitchcock Medical Center,
Additionally, other factors relating to the practicability of obtaining an abortion prior to the end of the second trimester may also be relevant in any given case, including but not limited to the credibility of the mother’s claim she would have sought to terminate her pregnancy, the relative ease or difficulty in locating a provider willing to perform the required procedure, and the mother’s ability to travel within the applicable window of opportunity to the location where the procedure would be performed.
Our holding in this case is consistent with the well-settled principle that a party is entitled to have the trial court instruct the jury on its theory of the case when the evidence, even though controverted, supports that theory. Mathieu v. Schnitzer,
While evidence of the availability of abortions in other states and the possibility that the mother might have been able to obtain a third trimester abortion in Florida or elsewhere may also be relevant to a jury on the issue of causation, those considerations do not constitute valid reasons for excluding evidence that third trimester abortions are generally illegal in Florida. In light of the trial court’s failure to permit the jury to consider the relevance of section 390.0111 to the plaintiffs’ specific situation, leading to the exclusion of other relevant evidence on that factual issue, a new trial on the issue of liability and causation is required.
Reversed and Remanded for a New Trial on Liability and Causation.
Notes
. This gestational age calculation uses the date of the mother's last menstrual period, not the point of conception, to measure the fetus’s development through the trimester stages and determine the projected due date, also known as the estimated date of confinement.
. The trial court granted the defendants’ motion in limine as to additional ultrasounds performed in August and September 2008, but denied it as to the June 30 Level II ultrasound.
. We recognize, as have other courts, that there are different methods of calculating the duration of pregnancy, depending on the professionals involved and their field of expertise. The average duration of pregnancy is about 280 days. Estimation of the date on which delivery should occur is based on the first day of the last menstrual period. Taber’s Cy-clopedic Medical Dictionary 1730 (19th ed. 2001). However, depending on the calculation used, there may be more than a two-week deviation either way. City of Akron,
*1090 Because this case concerns the standard of care for clinicians, their usual and customary method of calculation, consistent with their standard of care, is the one relevant to our inquiry.
. It should also be noted that the mere fact that a presentation of these issues may require a fact finder to conduct a “trial within a trial” is not a proper basis for denying parties the ability to present evidence on relevant issues pertaining to their theory of the case. Tarleton v. Arnstein & Lehr,
. There was no evidence presented at trial that the mother met any applicable medical criteria that would have permitted the procedure to be performed under a Florida exception, or performed elsewhere. Regardless, whether or not an abortion was indeed available to the mother in another state was a question of fact for resolution by the jury, not the court.
Dissenting Opinion
dissenting.
I respectfully dissent. I would hold that the trial court did not abuse its discretion in excluding Florida’s abortion statute from the jury’s consideration at trial. First, I disagree with the majority’s conclusion that the statute applied to the mother in this case. Second, even if the statute did apply to the mother, the trial court appropriately exercised its discretion in excluding it from consideration at trial so as to avoid unfair prejudice and confusion of the issues.
Florida law prohibits abortions during the third trimester unless necessary to
As a preliminary matter, I disagree with the majority’s interpretation of the term “pregnancy” under section 390.011(8), Florida Statutes (2008). The majority holds that the weeks of pregnancy under the statute must be measured by the fetus’s gestational age, which begins with the mother’s last menstrual period.
Because the term “pregnancy” is undefined in the statute, the term is to be given its plain and ordinary meaning, which can be ascertained by reference to a dictionary. Rollins v. Pizzarelli,
Under the plain meaning of the term, a woman cannot be “pregnant” without a developing embryo, fetus, or unborn offspring within her body. A woman is not “pregnant,” and therefore “pregnancy” has not begun, at the time of her last menstrual period. Accordingly, the dictionary definition of “pregnancy” indicates that a pregnancy begins, at the earliest, at conception.
The majority contends that the term “weeks of pregnancy” is a term of art with a specialized meaning for the medical profession. However, when a term has both a common and a technical meaning, there is a presumption in favor of the common meaning unless the profession to which the technical term belongs is the legal profession. City of Tampa v. Thatcher Glass Corp.
Applying the plain meaning of section 390.011(8) would not lead to an unreasonable result or one clearly contrary to legislative intent. While the exact date of a fetus’s conception is generally unknown, it does not follow that the legislature necessarily intended for pregnancy to be measured from the last menstrual period. Pregnancy can be “measured either from the date of a woman’s [last menstrual period] or from conception, which is generally considered to occur two weeks after a woman’s [last menstrual period].” Greenville Women’s Clinic v. Bryant,
Even if I were to agree that measuring the weeks of pregnancy by the fetus’s gestational age is a reasonable interpretation of the statute, my construction of the statute would not change. At a minimum, measuring the weeks of pregnancy from the point of conception would also be a reasonable interpretation of the statute.
Where there is more than one reasonable interpretation of a statute, the statute is ambiguous and this court may resort to principles of statutory construction to determine the meaning of the statute. Rollins,
The majority suggests that in light of the trimester framework of Roe v. Wade,
Therefore, although there was evidence that the mother’s fetus had a gestational age of about twenty-four weeks at the time of the June 30th ultrasound, section 390.0111 would not have precluded her from obtaining an abortion in Florida at that time had she been properly notified of the fetus’s defects.
Furthermore, even if the mother was past the deadline for obtaining a legal abortion under Florida law, the mother could have obtained an abortion outside the state of Florida. Contrary to the majority’s suggestion, the availability of an abortion to the mother in another jurisdiction cannot be seriously questioned. For example, Maryland allows abortions in the third trimester where the “fetus is affected by a genetic defect or serious deformity or abnormality.” Md. Code, Health — General, § 20 — 209(b)(2)(h) (2008). In this case, there was undisputed evidence at trial that the mother’s child was born with severe deformities. In light of this undisputed evidence, the Maryland statute would have allowed the mother to obtain an abortion in Maryland as a matter of law.
The trial court’s decision to exclude Florida’s abortion statute from the jury’s consideration must be viewed in light of the nature of the plaintiffs’ claim. A wrongful birth claim requires proof that negligent treatment or advice deprived the plaintiffs of the opportunity to avoid conception or to terminate the pregnancy. Kush v. Lloyd,
Our supreme court has never articulated any requirement that the plaintiff in a wrongful birth case must prove exactly where the abortion would have occurred. Nor have the defendants even challenged the sufficiency of the evidence in this case.
Assuming Florida’s abortion statute was relevant, the exclusion of that statute from the jury’s consideration still was not an abuse of discretion. Section 90.403, Florida Statutes, renders otherwise relevant evidence inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or the possibility that the jury may be misled.
“The weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two.” Sims v. Brown,
Presenting the jury with evidence that a third trimester abortion is generally illegal in Florida would have been unfairly prejudicial and would have confused the issues in the case. This evidence would have unfairly injected the plaintiffs’ financial status into the case by opening an inquiry into whether they could afford to travel to another jurisdiction for the abortion. This evidence also could have unfairly painted the plaintiffs as doing something nefarious by traveling to another jurisdiction to evade the requirements of Florida law.
Under the abuse of discretion standard of review, a trial court’s ruling on the admissibility of evidence will be upheld absent an abuse of discretion. Thigpen v. United Parcel Servs., Inc.,
Because I find no reversible error in any of the issues raised by the defendants, I would affirm.
. Any reference to "gestational age” in this opinion will refer to gestational age as measured from the last menstrual period.
. There is an added complication in that some medical texts describe pregnancy as beginning at implantation, rather than conception. As one court noted: “Standard medical texts describe the beginning of pregnancy as the time of implantation of a zygote into the uterus, about six days after conception.” Karlin v. Foust,
. In fact, other state abortion statutes contain provisions measuring weeks of pregnancy from the point of conception. See, e.g., S.C. Code § 44 — 41—10(i) (2008) (measuring weeks of pregnancy as "commencing with conception rather than computed on the basis of the menstrual cycle”); Nev. Stat. §§ 442.250 l.(b), 442.253 l.(b) (2008) (allowing abortions within twenty-four weeks after the commencement of the pregnancy and requiring the physician to inform the pregnant woman of the "number of weeks which have elapsed from the probable time of conception”).
. The majority argues that even if the statute should be interpreted to measure pregnancy from the time of conception, thereby allowing the mother nearly two weeks after the June 30th ultrasound to obtain a lawful abortion under Florida law, "the existence of section 390.0111 would still be relevant to whether the mother could have logistically obtained an abortion in Florida before the statutory deadline.” However, the defendants never raised this precise argument below, nor did they proffer exactly what evidence of logistical obstacles to an abortion that they wanted to present to the jury. Therefore, this argument
. Among other things, the defendants argued below that: 1) all the medical experts agreed that on June 30th, the mother was in her third trimester under Florida law; and 2) at a minimum, the method of counting the length of the pregnancy presented a "question of fact.” However, these arguments miss the mark. The proper interpretation of section 390.011(8) is a question of law, not a question of fact, and the medical experts were not qualified to give an opinion on Florida law. The correct meaning of section 390.011(8) is a question for a court to decide. Cf. Marbury v. Madison,
. The mother also could have obtained an abortion in South Carolina. See S.C. Code § 44-41-20 (2008) (allowing a second trimester abortion if "performed with the pregnant woman’s consent by her attending physician in a hospital or clinic certified by the Department”); S.C. Code § 44-41-10(i) (2008) (measuring weeks of pregnancy as "commencing with conception rather than computed on the basis of the menstrual cycle”); S.C. Code § 44 — 41—10(j) (2008) (defining "second trimester” as the portion of a pregnancy following the twelfth week and extending through the twenty-fourth week).
. Contrary to the suggestion by the majority, the plaintiffs have not requested that this court impose a duty on a physician to provide information to a patient about where she could legally undergo a third trimester abortion.