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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, was irrelevant. Courts generally interpret the words of a statute by giving them their plain and ordinary meaning. 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. As such, we decline to establish such a duty for the first time here. A woman is not “pregnant,” and therefore “pregnancy” has not begun, at the time of her last menstrual period. At a minimum, measuring the weeks of pregnancy from the point of conception would also be a reasonable interpretation of the statute. Contrary to the majority's suggestion, the availability of an abortion to the mother in another jurisdiction cannot be seriously questioned.
Prior to trial, defendants sought to preclude plaintiffs from presenting any evidence or argument that the Level II ultrasound caused any damages. Defendants asserted that using the gestational age to calculate the weeks of the mother's pregnancy, the Level II ultrasound was performed one day into the mother's third trimester of pregnancy. June 24, 1996) (in wrongful birth action, defendants were free to present evidence that a viable fetus existed on the relevant date and that there was no basis to terminate the mother's pregnancy at that time because of threats to her life or health). 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. Additional guidance can be gleaned from the Supreme Court cases creating and interpreting the trimester framework upon which the Florida law is based. The court went on to explain that in determining whether a disclosure of an increased risk of birth defects was “timely” in a wrongful birth action, a fact finder should be permitted to consider, among other things: expert testimony concerning the proximity of the disclosure to the end of the plaintiff's second trimester; expert testimony about whether the medical providers could have earlier disclosed information concerning the increased possibility of birth defects; the practicability of scheduling an abortion to occur prior to the expiration of the second trimester, taking into account whether a medical provider reasonably would have performed the procedure within such a timeframe; the availability of third trimester abortions in other jurisdictions; the requirements for obtaining a third trimester abortion in other jurisdictions; and whether the plaintiff's clinical situation, at the time of the disclosure, would have met such requirements. Plaintiffs also contend that had the Level II ultrasound been properly interpreted, the mother could have traveled to another state to obtain an abortion at her stage of pregnancy, or perhaps could have secured a third trimester abortion in Florida or elsewhere under an applicable statutory exception. 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. 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. Indeed, in Florida, the rule of lenity is not just an interpretive tool, but is also a statutory directive, requiring that any ambiguity in which statutory language is susceptible to differing constructions must be resolved in favor of the accused. The majority suggests that in light of the trimester framework of Roe v. However, while Roe relies upon weeks of gestational age in discussing fetal viability, Roe is not a statutory interpretation case and does not provide any guidance on how to interpret a statute which proscribes an abortion after a certain number of weeks of “pregnancy.”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.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. 416, 457 (1983) (O'Connor, J., dissenting) (emphasis added).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. Thus, it appears that the Supreme Court in Roe also measured the weeks of pregnancy and trimesters by the fetus's gestational age. Consequently, we hold that the term “third trimester” as used section 390.0111 must also be interpreted using gestational age in light of Roe's trimester viability analysis. Department of Professional Regulation, 532 So.2d 47 (Fla. 18, 2007) (in wrongful life action, the trial court did not commit error in instructing the jury as follows: “A woman cannot have an abortion in California where the fetus is viable and the pregnancy does not pose a risk to the life or health of a pregnant woman.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. 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. 1st DCA 1988), the First District upheld a ruling by the State Board of Medicine revoking a doctor's license after he miscalculated the gestational age of the fetus and performed an abortion during the last trimester of the patient's pregnancy. A fetus is generally considered viable at and after 24 weeks of gestation. A., West Palm Beach, Schuler, Halvorson, Weisser & Zoeller, P. 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.
D., appeal a final judgment awarding appellees/plaintiffs $2.5 million in damages following a jury trial in a medical malpractice action.
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. The majority contends that the term “weeks of pregnancy” is a term of art with a specialized meaning for the medical profession. Had the legislature meant “gestational age” as measured from the last menstrual period, it could have easily said so. 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 purpose of a wrongful birth claim is to recover damages for the extraordinary expense of caring for the impaired or deformed child, over and above routine rearing expenses. 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.
He testified that the June 30 Level II ultrasound was also incorrectly reported. 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. Applying the plain meaning of section 390.011(8) would not lead to an unreasonable result or one clearly contrary to legislative intent. 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. Nor have the defendants even challenged the sufficiency of the evidence in this case.
Appellants/defendants, OB/GYN Specialists of the Palm Beaches and Marie Morel, M.
We agree that the trial court erred in denying the defense the opportunity to argue the application of this law and reverse for a new trial on the issues of liability and causation only.
The trial court denied the motion, reasoning that the mother could have obtained a legal abortion in another state. The defendants' attempt to make an issue over whether the abortion could have occurred in Florida was nothing more than an obfuscation of the true issue in this case, which was whether the plaintiffs were robbed of the opportunity to terminate the pregnancy as a result of the defendants' malpractice.