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Bailey v. Khoury1/20/2005
th defects related to use of Depakote during pregnancy. Ms. Bailey further conceded that she knew that Jada had birth defects probably caused by her use of Depakote at least by October 28, 1997, when Dr. Grundmeyer told her both that her child had developed birth defects and that the defects were probably caused by her ingestion of Depakote early in her pregnancy. When asked how she felt when she learned that her unborn child had birth defects, Ms. Bailey replied that she was "messed up" and upset. Ms. Bailey also said that she considered having an abortion, despite the fact she did not believe in abortion. According to Ms. Bailey, her pregnancy with Jada was "rough" because she was sick all the time and unable to eat, and she also experienced greater depression than normal.
In this case, we have struggled to find a logical and equitable legal solution to the matter of accrual of Ms. Bailey's individual claim and the corresponding commencement of prescription. Although a finding that prescription commenced on Ms. Bailey's individual claim before Jada's birth would not raise the same equitable concerns as those raised by a finding that her claim on behalf of Jada commenced prior to Jada's birth, we nevertheless find that the twin goals of consistency and predictability would be better served through holding that the claims accrue on the same date. Because Ms. Bailey is the plaintiff in both claims, and because both claims allege the same negligent acts (failure to warn), the determination of when prescriptive commences on the two claims should not turn upon which hat Ms. Bailey happens to be wearing. Further, a finding that prescription commenced on Ms. Bailey's individual claim at the same time it commenced on her claim on behalf of Jada provides the additional benefit of a clear, predictable benchmark, and relieves a pregnant plaintiff of the burden of worrying about the need to pursue potential legal claims during a difficult pregnancy. Finally, and most importantly, proper application of the applicable legal principles to the facts surrounding Ms. Bailey's claim does not support the conclusion urged by the defendants. For the reasons explained below, we therefore reject the defendant's argument that Ms. Bailey's claims accrued on the date she was told that her unborn child had birth defects probably caused by her ingestion of Depakote.
Reduced to its essence, defendants' argument is that knowledge of the birth defects and their probable cause, coupled with Ms. Bailey's testimony that she was upset when she gained that knowledge, is sufficient to commence prescription under the discovery rule. We disagree. As is evident from the principles governing application of the discovery rule discussed above in the introduction to the section entitled "Commencement of Prescription," determination of the date when a cause of action in a medical malpractice action accrues is more complicated than the defendants suggest. In fact, determination of when prescription commences under the discovery rule depends on at least two primary factors: (1) the date on which the plaintiff gained actual or constructive knowledge of "facts indicating to a reasonable person that he or she is the victim of a tort," Campo, 01-2707 at 11, 828 So. 2d at 510; and (2) the date on which the "tortious act actually produces damage." Harvey, 593 So. 2d at 354. Both knowledge and damages must be present for prescription to commence, and, as will be shown, the two factors work together in this case. Defendants' argument focuses on the first of these factors, while virtually ignoring the second.
When applying the above principles to the facts of a particular case, we must also keep in mind the general precepts governing determi
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