Court Allows Wrongful Death Suit for Fetus

MONTGOMERY, Ala. (CN) – The Alabama Supreme Court cleared the way for a woman to sue her obstetrician for the death of her unborn child, reversing a lower court’s decision.

As recounted in court documents, plaintiff Kimberly Stinnett found out she was pregnant on May 9, 2012, and two days later began experiencing abdominal cramping and fever.

Stinnett said because it was after hours when her symptoms arose, she called her obstetrician’s answering service and received a call back from defendant Karla Kennedy, the doctor on call.

Kennedy told her Stinnett to go to the emergency room at a nearby hospital. Once there, Stinnett told the admitting nurse and emergency room doctor that she had experienced two previous miscarriages and one ectopic pregnancy, which resulted in the rupture and removal of her left fallopian tube.

Following an ultrasound and examination, Kennedy was concerned that Stinnett was experiencing another ectopic pregnancy, so during a follow up to the emergency room visit she performed a dilation and curettage.

Although the pathology report showed “products of conception” from the tissue taken and no ectopic pregnancy, Kennedy administered methotrexate, a drug intended to cause the end of a pregnancy, the court documents say.

When Stinnett was seen by her regular doctor the next day, an ultrasound showed a “definite yolk sac” that was failing due to the drug she had been given. According to the court documents, Stinnett had a miscarriage a few weeks later.

Stinnett sued Kennedy for medical malpractice and wrongful death of a minor under the Alabama Wrongful Death Act.

The Jefferson County Circuit court dismissed the wrongful death claims, finding a “physician’s exception” under the Brody Act that “prohibits the extension of civil liability under the Wrongful Death Act to licensed physicians who through mistake or unintentional error cause the death of a previable fetus.”

Stinnett appealed this decision to the Alabama Supreme Court. Meanwhile, the medical malpractice claim was the subject of a jury trial which ended with a verdict in favor of the doctor.

Writing for the Supreme Court, Justice James Allen Main said that while it is undisputed that at no time before the miscarriage the fetus was viable in the sense it could have survived outside the womb, it is disputed as to whether the fetus could have reached viability.

Main observed that an amendment to the Homicide Act defines a person as a “human being, including an unborn child in utero at any stage of development, regardless of viability.”

He rejected Kennedy’s argument that Stinnett did not meet her burden of establishing “that the alleged negligence probably caused, rather than only possibly caused” the death of the previable fetus.

Turning to the heart of the case, Main said he does not believe that “probable progression to viability is the appropriate relevant proximate-cause inquiry in this case.

“Indeed, requiring proof of future viability in order to establish the element or proximate cause would effectively reimpose the viability rule,”  he wrote.

Main held that Stinnett was only required to show that Kennedy’s actions “probably” caused the death of her fetus and the evidence in this case shows that “the treatment at issue was not intended to save the life of the previable fetus, whom our law recognizes as an independent person, but to hasten the end of the pregnancy.”

Although Main conceded a jury could conclude Kennedy’s treatment was not the proximate cause of death, he said there is ample evidence indicating that the drug given was responsible for the death of the fetus and this is sufficient to create a jury question.

In a concurring opinion, Justice Tom Parker wrote that the Supreme Court was reaffirming “the principle that unborn children are protected by Alabama’s wrongful-death statute from the moment life begins at conception.”

He also opined that the belief that life begins at conception “is beyond refutation.”

Parker said he found it “troubling” that the trial court would find a “physician’s exception” because there isn’t one under the Wrongful Death Act. And he encouraged Alabama judges to apply Alabama law “consistent with the robust, equal protection with which the Creator God endows and state-law guarantees to unborn children from the moment of conception.”

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