Kush v. Lloyd

In 1976, Diane Lloyd (defendant) gave birth to a son with significant deformities. Lloyd’s pediatrician, Dr. Pedro Diaz (plaintiff), referred Lloyd for genetic testing. Before all of the ordered genetic tests were completed, Diaz informed Lloyd that her son’s deformities were not genetic and that she could safely have additional children. Lloyd switched doctors from Diaz to Dr. Arthur Kush (plaintiff) in 1978. In 1983, Lloyd gave birth to a second son with the same significant deformities. Lloyd sought testing from a genetics laboratory, which discovered that (1) Lloyd carried the 10p trisomy genetic abnormality; and (2) Lloyd had passed the 10p trisomy genetic abnormality to both of her sons. The 10p trisomy genetic abnormality caused significant physical and mental impairments. In 1985, Lloyd brought a medical-malpractice action against Diaz and Kush, on her younger son’s behalf, for wrongful birth, wrongful life, and for damages associated with her son’s extraordinary care expenses. The trial court dismissed Lloyd’s claim, holding that it was barred by the seven-year statute of repose, which started to run from the date of Diaz’s negligent diagnosis in 1976. Lloyd appealed, and the appellate court reversed, holding that the statute of repose started to run from the date of the younger son’s birth in 1983. The appellate court then certified a question to the Florida Supreme Court regarding whether the statute of repose in medical-malpractice cases involving a wrongful-life claim based on a negligent diagnosis started to run when the negligent diagnosis was made rather than when the affected child was born.