| 1 | The Civil Justice Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to a cause of action for the negligent |
| 7 | infliction of emotional distress arising out of the loss |
| 8 | of a pregnancy due to the negligence of another; creating |
| 9 | s. 768.38, F.S.; creating a cause of action when a |
| 10 | pregnancy is wrongfully ended by negligence regardless of |
| 11 | physical impact; providing that each parent may recover |
| 12 | damages; providing for types of damages that may be |
| 13 | recovered; providing exceptions; providing an effective |
| 14 | date. |
| 15 |
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| 16 | Be It Enacted by the Legislature of the State of Florida: |
| 17 |
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| 18 | Section 1. Section 768.38, Florida Statutes, is created to |
| 19 | read: |
| 20 | 768.38 Right of action for loss of pregnancy due to |
| 21 | negligence.-- |
| 22 | (1) When a pregnancy is wrongfully ended by the negligence |
| 23 | of another person or entity, the mother and father of the fetus |
| 24 | may bring a cause of action for the negligent infliction of |
| 25 | emotional distress irrespective of whether there is a physical |
| 26 | impact. Neither parent, however, may bring a cause of action |
| 27 | under this section against the other parent. |
| 28 | (2) This cause of action allows each parent to recover for |
| 29 | his or her own mental pain and suffering, emotional distress, |
| 30 | and any economic damages that may arise as a result of the loss |
| 31 | of pregnancy. The damages that a parent may recover pursuant to |
| 32 | this section shall include the following: |
| 33 | (a) Medical expenses arising out of the pregnancy. |
| 34 | (b) Damages for the mental pain and suffering of the |
| 35 | parent, which include, but are not limited to, compensation for |
| 36 | the lost hopes, dreams, and expectations for what life may have |
| 37 | been like had the pregnancy resulted in a live birth. In |
| 38 | evaluating a claim for damages for the mental pain and suffering |
| 39 | and emotional distress of the parent, the trier of fact may |
| 40 | consider the characteristics of the unborn fetus, including, but |
| 41 | not limited to, the sex and the name chosen before the pregnancy |
| 42 | was negligently terminated and the circumstances surrounding the |
| 43 | loss of the pregnancy. |
| 44 | (3) A pregnant woman may not be sued under this section |
| 45 | for the termination of her own pregnancy. |
| 46 | (4) A health care provider may not be sued under this |
| 47 | section for nonnegligent termination of the mother's pregnancy |
| 48 | under the applicable standard of care for which the consent of |
| 49 | the pregnant woman, or a person authorized by law to act on her |
| 50 | behalf, has been obtained, or for which such consent is implied |
| 51 | by law. |
| 52 | Section 2. This act shall take effect upon becoming a law. |