with whom GLASSMAN, Justice, joins, dissenting.
I respectfully dissent.
The Court misperceives the legislative intent. In 1990 the Legislature defined an action “for professional negligence” as “any action for damages for injury or death against any health care provider,” 24 M.R.S.A. § 2502(6) (1990), and that such an action accrues “on the date of the act or omission giving rise to the injury.” Id. § 2902. Simultaneously, it announced that “the birth of a normal, healthy child does not constitute a legally recognizable injury,” id § 2931(1), but that “[a] person may maintain a claim for relief based on a failed sterilization procedure resulting in the birth of a healthy child_” Id § 2931(2). Since, by its terms, the birth of a healthy child is not an injury, an action for a failed sterilization procedure is not an action “for professional negligence” within the meaning of section 2502(6). It need not be brought within three years of the “omission giving rise to the” birth of a healthy child.
Interpreting the Legislature’s intent as I do avoids a constitutional problem with the Court’s opinion. On February 5,1992, Musk learned she was pregnant. Requiring her to commence an action for professional negligence before February 15, 1992, the third anniversary of a failed sterilization procedure, would seem to define an unreasonably short period “within which a claimant must seek redress in the courts.” Me. Const. art. I, § 19. Maine Medical Ctr. v. Cote, 577 A.2d 1173, 1176 (Me.1990).
In Choroszy v. Tso, 647 A.2d 803, 807 (Me.1994), we held that it was not unconstitutional to require a person who received faulty medical advice concerning a medical condition with adverse and continuing symptoms to bring his action within three years of that advice. Such a holding does not preclude a contrary holding when a plaintiff must file her action within ten days of her first symptoms.
I would vacate the decision of the Superior Court.