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Jax Daily Record Thursday, Jan. 9, 201412:00 PM EST

Malpractice verdict overturned due to abortion issue

by: Jim Saunders The News Service of Florida

An appeals court Wednesday tossed out a $2.5 million judgment in a medical-malpractice case stemming from a child's birth defects, ruling that defendants should have been able to raise issues about third-trimester abortions being largely illegal in Florida.

In a 2-1 decision, the 4th District Court of Appeal found that a judge improperly barred physician Marie Morel and OB/GYN Specialists of the Palm Beaches from making arguments about the abortion law. The appeals court sent the case back for a new trial.

The Palm Beach County case was filed by Ana Mejia and Rodolfo Santana, whose baby was born in October 2008 with no hands, one leg and a fraction of a foot attached to a hip on the other leg, according to the ruling.

The lawsuit alleged that the doctor failed to tell the parents about the birth defects in a "timely manner,'' preventing them from making a decision about whether to terminate the pregnancy.

But attorneys for the doctor and her employer sought to argue that even if ultrasound results had been reported accurately, the mother could not have received a legal abortion in Florida, the ruling said.

They contended that an ultrasound was performed one day into the third trimester of pregnancy and that abortions are prohibited at such a late stage in Florida except in circumstances to save the lives or preserve the health of pregnant women.

Circuit Judge Lucy Chernow Brown rejected the argument, finding that it was irrelevant, and the mother testified she would have undergone an abortion if she had known about the birth defects, according to Wednesday's ruling. 

But a majority of the appeals court disagreed with Brown's decision.

"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,'' wrote Judge Mark Klingensmith, who was joined in the majority by Chief Judge Dorian Damoorgian.

The appeals court grappled with issues such as how to calculate a third-trimester pregnancy, with the majority finding that it should be based on gestational age — a calculation involving the mother's last menstrual period — instead of the date of conception. Using the date of conception likely would have meant Mejia was not in the third trimester at the time of the key ultrasound.

Judge Carole Taylor wrote a dissenting opinion Wednesday that said the definition of a third-trimester pregnancy should be based on the time of conception.

She also argued that the circuit judge was right to bar discussion of Florida's third-trimester abortion law in the case, in part because Mejia could have traveled to another state to get such a late-term procedure.

"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,'' Taylor wrote. "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."

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