Court hears novel med-mal defense

By Jim Saunders

9/01/2010 © Health News Florida

The Florida Supreme Court heard arguments today in a Palm Beach County medical-malpractice case that boils down to this tricky question: When is a father not legally a father?

Justices are considering a wrongful-death claim filed on behalf of a child who, according to a legal brief, has a "99.998 percent certainty" of being the biological son of a man who committed suicide in 2005 after being discharged from St. Mary's Medical Center.

But 99.998 percent or not, attorneys for the hospital and psychiatrist Johnathan Greenfield are trying to fend off the case by arguing that the child was never the legal son of the dead man, Shea Daniels.

That is because the child's mother was married to another man at the time the boy, Javon Daniels, was conceived and born. And under Florida law, the attorneys argued, that makes the mother's then-husband, Willie Washington, his legal father --- regardless of DNA.

"Mr. Washington is the legal father by operation of law until such time as his parental rights have been divested,'' Lawrence Brownstein, an attorney for Greenfield, told justices today.

But Julie Littky-Rubin, an attorney for Shea Daniels' estate, said there is "nothing in logic, reason and sympathy ... for this court to slam courthouse doors in the face of this little boy.''

Justices, who could take months to decide the case, peppered the attorneys with questions about issues such as the legal significance of the phrase "born out of wedlock.'' At one point, St. Mary's attorney Norman Waas said he recognized sympathies lie with the boy.

That drew a swift retort from Justice Barbara Pariente: "I think it's the logic. It's not just the sympathy.''

Shea Daniels' estate filed the malpractice lawsuit against the psychiatrist and the hospital, alleging that he was negligently discharged "when he was clearly suffering from suicidal ideations and significant mental instability,'' according to a brief filed by the estate's attorney.

A Palm Beach County circuit judge sided with the doctor and hospital, tossing out the claim because of the paternity issue. The 4th District Court of Appeal, however, reversed that decision last year, setting up the battle in the Supreme Court.

Because of the legal fight about whether a claim could be pursued, a trial has not been held on whether medical malpractice actually occurred and whether damages should be awarded. If the Supreme Court sides with the estate, the case would go back to circuit court.

The case involves a tangle of personal issues that could affect the Supreme Court's deliberations.

Javon's mother married Washington in 1999, but they separated a year later when the husband entered the military. They had been "physically and geographically separated'' for at least a year before Javon was born in September 2001, according to the estate's legal brief.

Shea Daniels was listed as the child's father on the birth certificate and also paid $50 to $70 a week in child support, but a DNA test was never conducted while he was alive. Washington and Javon's mother divorced in 2004.

During the lawsuit, the estate's attorney had a DNA test done that showed with "99.998 percent certainty" that Shea Daniels was Javon's father.

But attorneys for the hospital and doctor argue that state law has long established that, when a woman is married and has a child, the husband is legally the father. That is the case even when the child was conceived with another man.

"It is the public policy of this state that the husband be deemed the legal father of a child born during a marriage,'' Greenfield's attorney argued in a brief.

But the estate's attorney argued that the Supreme Court "should not strip this child of his rightful and legitimate claim'' and should uphold the 4th District Court of Appeal's ruling.

"There was no doubt in the 4th District's mind that Shea Daniels was indeed Javon's father; the only father he ever knew,'' the attorney wrote in a brief.

--Capital Bureau Chief Jim Saunders can be reached at 850-228-0963 or by e-mail at jim.saunders@healthnewsflorida.org.

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