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1. Plaintiff’s child was stillborn;
2. Defendant’s negligence caused the stillbirth of the child; and
3. Plaintiff suffered mental pain and anguish as a result.

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1. Plaintiff’s child was stillborn;
2. Defendant’s negligence caused the stillbirth of the child; and
3. Plaintiff suffered mental pain and anguish as a result.

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FLORIDA STATE COURTS

Supreme Court: Tanner v. Hartog, 696 So.2d 705, 708 (Fla. 1997).

Fourth District: Kammer v. Hurley, 765 So.2d 975, 977 (Fla. 4th DCA 2000).

FLORIDA FEDERAL COURTS

Middle District: Arquette v. Eslinger, No.: 6:08-cv-1836-Orl-35DAB, 2010 WL 11623669, at *11 (M.D. Fla. Feb. 10, 2010).

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2 Defenses to Claim for Negligence Stillbirth

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.

(2) Statute of Limitations: Fla. Stat. § 95.11(4)(a) (2023) (two years); Fla. Stat. § 95.11(3)(a) (2022)(four years for claims accruing prior to March 24, 2023).

(3) Limitation on Damages: “As contrasted to the damages recoverable parents under the wrongful death statute, the damages recoverable in an action for negligent stillbirth would be limited to mental pain and anguish and medical expenses incurred incident to the pregnancy.” Tanner v. Hartog, 696 So.2d 705, 708 (Fla. 1997).

(4) Impact Rule: Plaintiff mother need not suffer physical impact or injury as a result of the stillbirth to bring a claim. Tanner v. Hartog, 696 So.2d 705, 708 (Fla. 1997).

(5) “[T]ort liability in Florida is premised on pure comparative negligence, which means that a jury should apportion fault between the plaintiff, defendant, and any third parties alleged to have been at fault, and render an award based on a defendant’s percentage of fault in causing an injury.” Williams v. Davis, 974 So. 2d 1052, 1061 n.1 (Fla. 2007); Fla. Stat. § 768.81(2).  For negligence claims that accrue on or after March 24, 2023, Florida will apply a comparative negligence standard, which bars a plaintiff from recovery if the plaintiff is more than fifty (50) percent at fault. § 768.81(6), Fla. Stat. (2023).

(6) Medical Malpractice: “The Florida Supreme Court has held that, in legal contemplation, an unborn fetus is not a person for the wrongful death of whom a tortfeasor is liable to its survivors for damages under the Wrongful Death Act ( § 768.19, Fla. Stat.); therefore, it is living tissue of the body of the mother for the negligent or intentional tortious injury to which the mother has a legal cause of action the same as she has for a wrongful injury to any other part of her body.” Singleton v. Ranz, 534 So.2d 847, 847-48 (Fla. 5th DCA 1988).

(7) Short Gestation: Negligent stillbirth and its exception to the impact rule do not apply to the deaths of very young fetuses. Though no bright-line rule has been established, the cut-off is somewhere between fifteen weeks and forty-one weeks. Compare Thomas v. OB/GYN Specialists of Palm Beaches, Inc., 889 So.2d 971, 971-72 (Fla. 4th DCA 2004) (holding that impact rule exception for negligent stillbirth did not apply to the loss of a fifteen to eighteen week-old fetus), with Tanner v. Hartog, 696 So.2d 705, 706 (Fla. 1997) (allowing suit for negligent stillbirth over the loss of forty-one week-old fetus).

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