Wrongful death actions allow family members to recover losses in the event a person dies as a result of negligence or criminal wrongdoing by a third party. Beginning in about the 1880s, courts in the U.S. began interpreting statutes to exclude the recovery of damages for the death of unborn children. That slowly began to change in the mid-1940s, with some courts reasoning that recovery was allowed if the injury occurred before birth, but the child was born alive and later died.
By 2011, there were 36 states that recognized, as a result of either case law or actual statute, a cause of action in a civil lawsuit for the death of an unborn child. Even so, not many courts have specifically broached the issue of whether a cause of action exists if an unborn child dies before his or her viability outside the womb. Courts in North Carolina and South Carolina (see Johnson v. Ruark Obstetrics, a 1990 North Carolina Supreme Court case, and Crosby v. Glasscock Trucking Co., a 2000 case decided by the South Carolina Supreme Court), along with New York, have specifically decided not to allow recovery for the wrongful death of non-viable fetuses. There are other courts, however, that have specifically recognized the right of plaintiffs to file wrongful death lawsuits for nonviable fetuses. Among those are Alabama, Utah, South Dakota, Oklahoma, and Missouri.
Recently, in Alabama, the state supreme court underscored its position on this point in the recent case of Stinnett v. Kennedy, even as it pertained to the alleged medical malpractice of a doctor.
According to court records, the plaintiff was informed in May 2012 that she was pregnant. Just two days later, she started to experience fever and abdominal cramping. She called her obstetrician’s answering service and received a return call from the defendant, who instructed her to go to a local emergency room.
Upon admission, it was revealed that the plaintiff was about six weeks pregnant and that she had previously suffered two miscarriages and a third ectopic pregnancy. The third pregnancy resulted in the rupture and removal of her left fallopian tube.
An ultrasound in the ER revealed there was fluid in the endometrial cavity that could be a gestational sac, but there was no obvious yolk sac, thickening of the sac, or heart beat. Her pregnancy hormones were high, indicating she was pregnant. Based on the plaintiff’s medical history, the physician was worried this could be another ectopic pregnancy. She performed a dilation and curettage procedure, which involves dilating the cervix and removing tissue from the lining of the uterus. This reveals whether the pregnancy is ectopic or occurring in uterus. That report indicated the ovary was normal, and there was no evidence the pregnancy was ectopic. Still, the doctor hadn’t completely ruled it out, and her suspicion of this was still high, although she told the patient either way, she believed there had been a miscarriage. Based on the ongoing concern that the pregnancy might be ectopic, the doctor gave the plaintiff a drug intended to end the pregnancy.
A follow up ultrasound revealed the sac was intrauterine, and it had progressed to a yolk sac. Her regular doctor informed her, however, that she was having a miscarriage, possibly because of the drugs she was prescribed by the other physician. Several weeks later, the plaintiff suffered a miscarriage.
It was never in dispute in this case that the fetus was not viable. The question was whether the fetus could have reached viability if not for the defendant’s actions. The plaintiff alleged the defendant breached applicable standards of care and should be liable for the wrongful death of her fetus, as well as her own pain and suffering.
The defendant countered that while Alabama case law in 2011 recognized that the state’s wrongful death act allows an action for the death of a fetus before it is viable, the decision in that 2011 case stemmed from an interpretation of an amendment to the state’s homicide act. But even that law, the defendant noted, contained a provision that excepted licensed doctors from being criminally liable for the death of a non-viable fetus due to a mistake or unintentional error.
The trial court sided with the defendant doctor, dismissing the claim of wrongful death of the fetus but allowing the claim based on the plaintiff’s own pain and suffering to proceed. The defendant then moved for summary judgment on this claim, arguing there was evidence the pregnancy was failing before she got involved, and the pregnancy was not ever viable. She further argued it was speculation that her care caused the plaintiff’s loss of pregnancy.
The case went to a jury, which after hearing evidence was told state law didn’t permit recovery for the loss of a pregnancy or the effects of a loss of a pregnancy on the plaintiff. Jurors returned a final judgment in favor of the defendant.
On appeal, the state supreme court found the lower court erred in granting summary judgment on the claim regarding the wrongful death of the fetus, simply based on the lack of proof of causation. That, the court ruled, should have been a matter for jurors to decide. Therefore, the case was remanded for another trial.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Stinnett v. Kennedy, Dec. 30, 2016, Alabama Supreme Court
More Blog Entries:
Report: Hospital Patients Often End Up in Poorly Rated Nursing Homes, Jan. 9, 2016, Charlotte Wrongful Death Lawyer Blog