Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1974
Barcode 224420
CHAMBER ACTION
Senate House
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04/22/2005 07:27 PM .
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11 The Committee on Judiciary (Posey) recommended the following
12 amendment:
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14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Section 768.38, Florida Statutes, is
19 created to read:
20 768.38 Right of action for prenatal death caused by
21 negligence of another.--
22 (1)(a) In any lawsuit filed in this state under
23 current law, other than a claim for medical negligence as
24 defined in s. 766.106(1), in which it is alleged that a
25 pregnancy was wrongfully ended by the negligence of another
26 person or entity, the trier of fact may consider the following
27 evidence in evaluating a claim for damages for the mental pain
28 and suffering of the parents:
29 1. Characteristics of the unborn fetus, including, but
30 not limited to, the sex and the name chosen before the
31 pregnancy was negligently terminated; and
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7:32 PM 04/19/05 s1974d-ju24-c9u
Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1974
Barcode 224420
1 2. The circumstances surrounding the loss of the
2 pregnancy.
3 (b) The fetus may be referred to as a son or daughter,
4 as a child, or by its chosen name.
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6 Nothing contained in this subsection creates a new cause of
7 action not otherwise recognized by current law. The intent of
8 this subsection is to codify existing law and, therefore, it
9 shall neither expand nor restrict the law as it exists on the
10 effective date of this act.
11 (2) As to a claim for medical negligence as defined in
12 s. 766.106(1), when a viable fetus is stillborn as a result of
13 the negligence of a person or entity, the parents of the
14 stillborn fetus may bring an action for negligent stillbirth.
15 (a) Damages recoverable under this subsection shall be
16 limited to the following:
17 1. Medical expenses incident to the stillbirth; and
18 2. Noneconomic damages to each parent for mental pain
19 and suffering and emotional distress suffered by each parent
20 incident to the stillbirth, but not for the life expectancy of
21 the parent.
22 (b) For purposes of this subsection, the term
23 "stillbirth" means the loss of a viable fetus during the birth
24 process in the third trimester of pregnancy as defined by s.
25 390.011(8). There shall be no action for wrongful death of a
26 stillborn fetus under this subsection. A woman may not be sued
27 under this subsection for the termination of her own
28 pregnancy.
29 (c) A health care provider may not be sued under this
30 section for termination of the mother's pregnancy for which
31 the consent of the pregnant woman, or the person authorized by
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7:32 PM 04/19/05 s1974d-ju24-c9u
Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1974
Barcode 224420
1 law to act on her behalf, has been obtained or for which such
2 consent is implied by law.
3 (d) One parent may not sue another parent for
4 negligent infliction of emotional distress suffered as a
5 result of a stillbirth.
6 Section 2. This act shall take effect upon becoming a
7 law and applies to all actions in which the stillbirth occurs
8 after the effective date of the act.
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11 ================ T I T L E A M E N D M E N T ===============
12 And the title is amended as follows:
13 Delete everything before the enacting clause
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15 and insert:
16 A bill to be entitled
17 An act relating to a cause of action for
18 prenatal death caused by negligence; creating
19 s. 768.38, F.S.; providing for the
20 admissibility of certain evidence in evaluating
21 a claim for damages for the mental pain and
22 suffering of the parents in an action alleging
23 that a pregnancy was wrongfully ended by the
24 negligence of another; providing intent;
25 providing a cause of action for negligent
26 stillbirth; providing limitations on
27 recoverable damages; defining the term
28 "stillbirth"; exempting certain persons from
29 liability in specified circumstances; providing
30 applicability; providing an effective date.
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