MEDICAL LIABILITY AND HEALTH CARE LAW Dramatically Different Thresholds Wrongful Death Before Birth

By Erika L. Amarante and Laura Ann P. Keller

Although every state LIFE is the immediate gift of God, a right inherent by nature in has a statute establishing every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman wrongful death causes is quick with child, and by a potion, or otherwise, killith it in her of action, they differ on womb; or if anyone beat her, whereby the child dieth in her body, when an action begins and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. and to whom it applies. William Blackstone, Commentaries on the Laws of England 125–26 (1765)

Poetic as Blackstone may have been in his a summary judgment motion was denied, Commentaries on the Laws of England, the case proceeded to trial in which the one hardly expects that his views on the jury found that the fetus at 17 weeks’ ges- world in 1765 would be incorporated into tation had not “quickened” and accord- today’s case law. But that would be mis- ingly returned a defense verdict. Elderkin placed optimism. In the fall of 2017, a v. Greater New Haven OB-GYN Group, P.C. trial court in Connecticut quoted this very et al., No. CV156056191, 2018 WL 3715576, paragraph to support its decision that a at *2 (Conn. Super. Ct. July 12, 2018). ) The fetus could maintain a cause of action for term “quickened” refers to the point in a wrongful death, independent of any action woman’s pregnancy when she physically brought by the woman carrying the fetus, feels movement of the fetus. While fetal as soon as the fetus had “quickened.” Elder- movement was obviously meaningful in kin v. Greater New Haven OB-Gyn Group, 1765, “quickening” is not currently used in P.C. et al., No. CV 156056191, 2017 WL the medical field, and it varies significantly 5178583, at *5 (Conn. Super. Ct. Sept. 28, from person to person. 2017). (The authors of this article repre- In most states it is beyond dispute that sented the defendants in this case. After a woman who experiences a miscarriage

■ Erika L. Amarante is a litigation partner in the New Haven, Connecticut, office of Wiggin and Dana LLP. She represents hospitals, physicians and other health-care providers in cases alleging professional negligence, lack of informed consent, negligent credentialing, and related claims. Ms. Amarante recently served as pro- gram chair for the 2019 DRI Medical Liability and Health Care Law Seminar in Nashville. Laura Ann P. Keller is a litigation associate in the New Haven office of Wiggin and Dana LLP. She also represents hospitals and healthcare providers in cases alleging professional negligence. The authors thank Catherine Baiocchi for her valuable assistance in connection with this article.

30 ■ For The Defense ■ May 2019 or stillbirth as a result of the actions of death cause of action for an “unborn child” wrongful death causes of action for unborn, another may have standing to bring a law- and defining “unborn child” as “a member nonviable fetuses. Mack v. Carmack, 79 So. suit for that loss. However, whether and of the species Homo sapiens, at any stage of 3d 597 (Ala. 2011) (holding that since the when the unborn fetus may also sue for development, who is carried in the womb.”); legislature amended the homicide statute its own wrongful death is not so clear. A Ark. Code Ann. §§16-62-102, 5-1-102 (2015) to include a fetus at any stage of develop- wrongful death claim by a fetus is sep- (defining unborn child as “offspring of hu- ment, it would be “incongruous” if the civil arate and apart from any claim that the man beings from conception until birth”); law did not reflect similar rights for a fetus woman or her partner brings. Wrongful 740 Ill. Comp. Stat. 180/2.2 (2015) (stat- at the same stage of development); Farley v. death causes of action are statutorily cre- ing that “[t]he state of gestation or devel- Sarti, 195 W. Va. 671, 681 (1995) (holding ated; they did not exist at common law. opment of a human being… at death, shall that for tort actions, a nonviable fetus who And while every state has a statute provid- not foreclose maintenance of any cause of dies in utero should be treated the same as ing for a cause of action for wrongful death, action… arising from the death of a human a fetus who is born alive). they differ drastically on when that cause being caused by wrongful act, neglect or of action begins and to whom it applies. default.”); Kan. Stat. Ann. §60-1901(2015) Quickening Allowing fetuses to maintain wrongful (stating, “the term ‘person’ includes an un- “Quickening” is known as the moment death actions presents new and interest- born child,” and defining “unborn child” when a pregnant woman can first feel fetal ing challenges. For example, many wrong- as “a living organism of the species homo movement. Indeed, it is not hard to com- ful death actions come with claims for lost sapiens, in utero, at any stage of gestation prehend that at one point in history, before earnings and claims for pain and suffering from fertilization to birth”); La. Civ. Code. the development of ultrasound, it was a use- damages, both of which require significant Art. 26 (stating, “An unborn child shall be ful tool for determining whether a woman speculation to award to the unborn. considered as a natural person for what- was truly pregnant. It also was a tool, albeit This article looks at the dramatically dif- ever relates to its interests from the moment not a particularly useful one, for dating a ferent thresholds used across the United of conception. If the child is born dead, it pregnancy. For example, in a 1964 study at- States and the use of legislative versus shall be considered never to have existed tempting to determine the value of the date judge-made law to determine whether and as a person, except for purposes of actions of quickening in either corroborating the when an unborn fetus can maintain a cause resulting from its wrongful death.”); Mich. last menstrual period or in predicting the of action for wrongful death. The authors Comp. Laws. §§600.2922, 600.2922a (2002) expected date of delivery, the study found of this article take the position that such (broadening wrongful death claims to in- that “[b]ecause of [the] wide variability, the laws should be created only by state legis- dividuals who commit a wrongful or negli- date of quickening is of questionable value lators, not by judges, because inconsisten- gent act against a pregnant individual that at best.” Gary W. Kraus, Significance of the cies in standards within states can lead to results in “physical injury to or death of the Quickening Date in Determining Duration inconsistencies when applying civil, crim- embryo or fetus”); Mo. Ann. Stat. §§537.080, of Pregnancy, 24 Obstetrics and Gynecol- inal, or constitutional law, and whatever 1.205 (broadening the rights of unborn chil- ogy 178, 180 (1964). The study described standard a state may choose, it should dren to apply “from the moment of concep- quickening as a “widely variable event,” establish a bright line, with little room for tion until birth,” and noting that unborn which changed depending on a woman’s subjective interpretation. Lastly, this arti- children have equal rights to any other parity (the number of times she has been cle offers practical advice for those faced person); Neb. Rev. Stat. §30-809 (including pregnant). Id. The time at which women in with a wrongful death claim by the unborn. “an unborn child in utero at any stage of the study first felt fetal movements ranged gestation” in the wrongful death statute); from 66 days (9.4 weeks) to 180 days (25.7 The Current Standards 63 Okla. Stat. §1-730, 12 Okla. Stat. §1053 weeks). Id. at 179–80. In 1984, a study found Generally speaking, there are four “goal- (2015) (permitting wrongful death of an that “there is a statistically significant dif- posts” used by the various states to mark unborn child and defining unborn child as ference in mean gestational age at quick- the beginning of a wrongful death cause “offspring of human beings from the mo- ening for [anterior and posterior] placental of action: conception, quickening, viabil- ment of conception”); S.D. Codified Laws sites.” Martin Gillieson et al., Placental Site, ity, and live birth. §21-5-1 (2015) (permitting a wrongful death Parity, and Date of Quickening, 64 Obstet- cause of action for an “unborn child”); Tex. rics and Gynecology 44, 44 (1984). Further- Conception Civ. Prac. & Rem. Code §71.002 (defining more, “habitus,” or body build, is known to A minority of states allow a wrongful death “individual” in a wrongful death action as greatly affect when a pregnant woman can action to be maintained on behalf of any “an unborn child at every stage of gesta- first feel fetal movement. unborn fetus, regardless of gestational age. tion”); Va. Code. Ann. §§8.01-50, 32.1-249 Though it is not used as a current med- Currently, 14 states allow an embryo, or fe- (permitting a cause of action for fetal death, ical standard, “quickening” has at times tus, to maintain a wrongful death action and defining “fetal death” as a death prior appeared in legal history. As noted in the any time after fertilization. Of these states, to expulsion from the mother “regardless introduction, Blackstone’s Commentaries the majority have done so through legisla- of the duration of pregnancy”). Two states, on the Laws of England cited “quickening” tive changes. See Alaska Stat. §§09.55.585, Alabama and West Virginia, have created as the moment when “life” began. Refer- 11.81.900 (2015) (permitting a wrongful similar rules through case law, which allow ence to “quickening” can also be found

For The Defense ■ May 2019 ■ 31 MEDICAL LIABILITY AND HEALTH CARE LAW in the Supreme Court’s historical analy- Hampshire, New Mexico, North Carolina, before 23 weeks of gestation, even with full sis of abortion laws in Roe v. Wade. 410 North Dakota, Ohio, Oregon, Pennsylva- resuscitation and intensive care.” American U.S. 113, 132–33 (1973) (“It is undisputed nia, Rhode Island, South Carolina, Tennes- Academy of Pediatrics, Antenatal Counsel- that at common law, abortion performed see, Vermont, Washington, and Wisconsin. ing Regarding Resuscitation and Intensive before ‘quickening’—the first recognizable Ind. Code Ann. §34-23-2-1(b); Tenn. Code Care Before 25 Weeks of Gestation, 136 Pe- movement of the fetus in utero, appearing Ann. §2 0-5-106 (a)); Summerfield v. Supe- diatrics 588–95 (2015). In the over 40 years usually from the 16th to the 18th week of rior Court in and for Maricopa County, 144 since Roe was decided, the “viability” def- pregnancy—was not an indictable offence. Ariz. 467 (Ariz. 1985); Gonzales v. Mascare- inition has not changed significantly and The absence of a common-law crime for nas, 190 P. 3d 826 (Colo. App. 2008); Wor- remains firmly at 23–24 weeks’ gestation. pre- quickening abortion appears to have gan v. Greggo & Ferrera, Inc., 50 Del. 258 Some of the states that use viability as a developed from a confluence of earlier phil- (Del. Super. Ct. 1956); Castro v. Melchor, threshold make an exception for fetuses that osophical, theological, and civil and canon 137 Hawai’i 179 (Haw. Ct. App. 2016); Volk are “born alive.” Accordingly, even if a fetus law concepts of when life begins. These dis- v. Baldazo, 103 Idaho 570 (Idaho 1982); has not made it to 23–24 weeks, if it is born ciplines variously approached the question Stevens v. Flynn, No. 2010-CA-00196-MR, alive and lives for a certain amount of time in terms of the point at which the embryo 2011 WL 3207952 (Ky. Ct. App. July 29, before dying, states may allow a wrongful or fetus became ‘formed’ or recognizably 2011); Brown v. Contemporary OB/GYN death cause of action. See, e.g., Gonzales v. human, or in terms of when a ‘person’ came Assocs., 143 Md. App. 199 (Md. Ct. Spec. Mascarenas, 190 P.3d 826, 828 (Colo. App. into being, that is, infused with a ‘soul’ or App. 2002); Thibert v. Milka, 419 Mass. 693 2008) (holding that a nonviable fetus (22 ‘animated.’”). But until 2017, when a Con- (Mass. 1995); Pehrson v. Kistner, 301 Minn. weeks) that was born alive and lived outside necticut trial court decided to use quicken- 299 (Minn. 1974); Blackburn v. Blue Moun- the mother’s womb for one hour before ex- ing as a standard, as noted above, only two tain Women’s Clinic, 286 Mont. 60 (Mont. piring was a “person” under the wrongful states recognized the mother’s perception 1997); White v. Yup, 85 Nev. 527 (Nev. death statute); Thibert v. Milka, 419 Mass. of fetal movement as a threshold for when 1969); Wallace v. Wallace, 120 N.H. 675 693, 695 (Mass. 1995) (recognizing a cause a fetus could bring a wrongful death cause (N.H. 1980); Miller v. Kirk, 120 N.M. 654 of action for wrongful death for a fetus that of action: Georgia and Mississippi. In Geor- (N.M. 1995); DiDonato v. Wortman, 320 is born alive, regardless of viability). gia, the quickening standard appeared in N.C. 423 (N.C. 1987); Hopkins v. McBane, 1955 and was reaffirmed in 1980 through 359 N.W. 2d 862 (N.D. 1984); Griffiths v. No Wrongful Death for Unborn Fetuses case law that held that a “quick” fetus could Doctor’s Hosp., 150 Ohio App. 3d 234, 2002- Six states do not allow any unborn fetuses maintain a cause of action for wrongful Ohio-6173, 780 N.E.2d 603 (2002); LaDu v. to bring wrongful death cause of actions. death. Porter v. Lassiter, 91 Ga. App. 712 Oregon Clinic, P.C., 165 Or. App. 687 (Or. See Rosales v. Northeast Community Clinic, (1955); Shirley v. Bacon, 154 Ga. App. 203 Ct. App. 2000); Coveleski v. Bubnis, 535 Pa. B276465, 2018 WL 1633068, at *2 (Cal. Ct. (1980). In Mississippi, the state’s wrongful 166 (Pa. 1993); Miccolis v. AMICA, 587 A. App. Apr. 5, 2018) (“California’s wrongful death statute explicitly recognizes wrong- 2d 67 (R.I. 1991); Crosby v. Glasscok Truck- death statute does not recognize a claim ful death of a “quick” fetus, but it allows ing, 340 S.C. 626 (S.C. 2000); Vaillancourt for the wrongful death of a fetus”); Stern v. recovery by only the parents of the fetus. v. Med. Ctr. Hosp. Vt., Inc., 139 Vt. 38 (Vt. Miller, 348 So. 2d 303, 307–08 (Fla. 1977) Miss. Code Ann. §11-7-13 (2015). 1980); Baum v. Burrington, 119 Wash. App. (holding that only the legislature could 36 (Wash. Ct. App. 2003); Kwaterski v. State expand the wrongful death cause of action Viability Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14 to include an unborn fetus in its defini- Twenty-five of the states that permit (Wis. 1967). Interestingly, unlike the con- tion of a “person”); Dunn v. Rose Way, Inc., wrongful death actions for unborn fetuses ception standard, in which the majority of 333 N.W. 2d 830, 831 (Iowa 1983) (exclud- use viability as the threshold. “Viability” the states set the standard through legis- ing an unborn child from the definition of is a medical concept that measures “the lative action, the overwhelming majority “person”); Shaw v. Jendzejec, 717 A.2d 367, time at which there is a realistic possibil- of states that use viability as the threshold 371 (Me. 1998) (noting that the live-birth ity of maintaining and nourishing life out- have done so through case law. rule was the product of statutory inter- side the womb.” Planned Parenthood of Viability has been criticized as a moving pretation, and despite applying the live- Southeastern Pennsylvania v. Casey, 505 goalpost, given the advances in medicine. birth rule 10 years earlier, the legislature U.S. 833, 870 (1992). The Supreme Court But the Court in Roe v. Wade estimated vi- had done nothing to change it); Giardina recognized viability as a significant legal ability to occur, at the earliest, at approxi- v. Bennett, 111 N.J. 412, 421–25 (N.J. 1988) concept: “With respect to the State’s impor- mately 24 weeks’ gestation. 410 U.S. at 160. (interpreting the definition of “person” as tant and legitimate interest in potential That was in 1973. Forty-two years later, not including an unborn child and calling life, the ‘compelling’ point is at viabil- when the American Academy of Pediatrics upon the legislature to address the statute ity.” Roe v. Wade, 410 U.S. 113, 163 (1973). released its Clinical Report on whether and if that was not how it intended for the stat- The states using viability include Arizona, how to counsel a parent who was expecting ute to be interpreted); Endresz v. Friedberg, Colorado, Delaware, Hawaii, Idaho, Indi- an extremely preterm birth, it stated that 24 N.Y. 2d 478, 484 (N.Y. 1969) (declining ana, Kentucky, Maryland, Massachu- “survival without significant neurologic se- to extend the wrongful death statute to setts, Minnesota, Montana, Nevada, New quelae is extremely rare in infants delivered include an action for a stillborn fetus). All

32 ■ For The Defense ■ May 2019 MEDICAL LIABILITY AND HEALTH CARE LAW of these cases relied on similar reasoning for the death of an unborn child. Carranza Filed on Behalf of Aborted Embryo, AP to determine that unborn fetuses did not v. U.S., 267 P.3d 912, 914–15 (Utah 2011). News, Mar. 8, 2019. The plaintiff told press have wrongful death causes of action: sim- that he sued because he “wanted to be a ply put, the legislators did not provide for The Concerns father to his child.” Id. This lawsuit was it, so the courts would not either. While playing the guessing game with filed just months after Alabama approved a regard to which standard applies has led to state constitutional amendment recogniz- Unclear or Undecided Standards some interesting intellectual arguments in ing the rights of the unborn. Id. In a handful of states, there is no appel- Connecticut, it is not practical, and it bears Perhaps to prevent this very situation, late authority and little statutory guid- the risk of creating inconsistent law and some of the states that set conception as the concerning predicaments. Furthermore, threshold for these lawsuits have included that an unborn fetus can bring a wrongful savings clauses in the statutes that prohibit death cause of action in the great majority wrongful death claims to be filed against Six states do not allow of states creates unexpected legal hurdles. a medical provider performing a lawful abortion at the request of the mother. See, any unborn fetuses to Consistency with Existing Laws e.g., Alaska Stat. §§09.55.585(b) (“this sec- The most obvious concern with allowing tion does not apply to acts or omissions that bring wrongful death a fetus to have a wrongful death cause of (1) cause the death of an unborn child if action before viability is the conflict with those acts or omissions are committed dur- cause of actions. federal abortion law. For the time being, ing a legal abortion to which the pregnant states cannot prohibit abortion before via- woman… consents”); 740 Ill. Comp. Stat. bility. Roe v. Wade, 410 U.S. 113, 163 (1973). 180/2.2 (2015) (“There shall be no cause ance on whether and when a fetus can This means that in many of the states in of action against a physician or a medical bring a cause of action for wrongful death. which a fetus can bring a wrongful death institution for the wrongful death of a fetus In Connecticut, for example, the wrong- suit any time after conception, there are caused by an abortion where the abortion ful death statute does not mention fetuses approximately 24 weeks during which the was permitted by law and the requisite con- or the unborn, and the courts have cre- fetus can simultaneously be legally termi- sent was lawfully given.”). But importantly, ated a patchwork of judicial thresholds for nated and also bring a wrongful death law- that is not the case for all states, especially whether and when a fetus may maintain suit based on that termination. This raises those with judge-made law. a wrongful death cause of action. There is many public policy issues. Imagine if a Another statutory inconsistency arises no appellate authority, but the majority of father disagreed with the mother’s choice when states provide birth certificates the trial courts use viability as the thresh- to have a lawful abortion. Could he open for fetuses or death certificates for fetal old. See Warycha v. Midstate Medical Cen- an estate and sue the physician for wrong- deaths. Many states have a gestational age ter, No. CV020465854S, 2004 WL 870581, ful death? Could he sue the mother? Fur- or weight requirement before the state at *4 (Conn. Super. Ct. Mar. 29, 2004) (cit- thermore, could anti-abortion advocates requires reporting of a fetal death or the ing cases). However, two Connecticut trial open an estate on behalf of the fetus and registration of the death by fetal death cer- courts have made an exception for a non- sue the mother and/or the physician who tificate. A common requirement is a gesta- viable fetus that was born alive. Foster v. performed the termination? In the states tional age of 20 weeks. See, e.g., N.C. Gen. de Cholnoky, No. FBTCV136034831, 2015 that permit pre-viability, wrongful death Stat. §130A-114; N.D. Cent. Code §23-02.1- WL 5626312, at *12 (Conn. Super. Ct. Aug. claims, this overlap puts every physician 20; Ohio Rev. Code Ann. §3705.20. Inter- 21, 2015); Simon v. Mullin, 34 Conn. Supp. who performs a legal abortion at risk of estingly, some states in which an unborn, 139 (Conn. Super. Ct. 1977). And one Con- civil litigation. The potential to create a nonviable fetus can bring a cause of action necticut trial court has used the quick- chilling effect on a woman’s constitutional for wrongful death also have a 20 week ges- ening standard. Elderkin v. Greater New right to choose whether to carry a fetus to tational age threshold for recording a fetal Haven OB-Gyn Group, P.C. et al., No. CV term cannot be overstated. death. For example, in Alabama, Code §22- 156056191, 2017 WL 5178583, at *5 (Conn. These hypotheticals are not just out- 9A-13.1 requires a certificate of stillbirth Super. Ct. Sept. 28, 2017). rageous examples of the “slippery slope” after 20 completed weeks. However, the Similarly, in Wyoming, there is no ap- argument. In March 2019, an Alabama Alabama Supreme Court has opined that pellate authority, but a 2002 trial court Probate judge granted a man’s petition a fetus at any stage of development may allowed a cause of action for the wrongful to represent the estate of an embryo that bring a wrongful death cause of action. death of a “stillborn child.” Jeffers v. Wyo- was aborted at six weeks’ gestation. The Mack v. Carmack, 79 So. 3d at 597. In Illi- ming Medical Center, No. 77727A, 2002 man sought to file a wrongful death action nois, a fetus at any stage of development WL 33963921, at *1 (Wyo. Dist. Ct. Sept. against the physicians who provided his ex- may maintain a wrongful death action 23, 2002). In Utah, the Supreme Court con- girlfriend with a voluntary medical abor- by statute, but a different statute estab- sidered, but did not decide, whether the tion and the pharmaceutical company that lishes registering a fetal death only after Utah Code (Utah Code Ann. §78B-3-102, produced the medical abortion pill. See 20 weeks’ gestation. See 410 Ill. Comp. Stat. as amended in 2009), permitted an action Kim Chandler, Wrongful-Death Lawsuit 535/20. These incongruities are noteworthy

34 ■ For The Defense ■ May 2019 because, there may be a cause of action for Speculative Damages death causes of action before viability, or wrongful death before there is a legally rec- Assessing economic damages for an unborn for unborn fetuses at all, cite this very con- ognized and recorded death. fetus is inherently speculative and consti- cern. See, e.g., Giardina v. Bennett, 111 N.J. tutes an exercise in conjecture and surmise. 412 (N.J. 1988) (recognizing the speculative Consistency Across Fetuses Several states that do not permit wrongful nature of damages in a fetal death case); Another concern with certain thresholds for fetal death claims is the subjectivity involved and the differences among fetuses. For example, the quickening standard, in particular, allows fetuses of the same ges- tational age to have different legal rights. As noted above, the point at which “quick- ening” is recognized by different women is highly variable. Accordingly, under a quickening standard, a fetus of 10 weeks’ gestation that is being carried by a thin, second-time mom, with a posterior placen- tal site, has a cause of action for wrongful death if the pregnant woman thinks that she can feel the fetus move (even if that feeling is just gas pain). But a fetus of 25 weeks (beyond the point of viability) being carried by a larger, first-time mom, with an anterior placental site, would not have a cause of action for wrongful death if the pregnant woman had not felt fetal move- ment. Given that the wrongful death cause of action is an action for the fetus, and not the woman, allowing this much variabil- ity based on the woman’s own characteris- tics and subjective feelings does not make sense. If the goal in drawing a line for when a fetus can bring a wrongful death cause of Aetna Funding AdvantageSM is a solution action is choosing a milestone that will be that can help your small business save on consistent, quickening is not the answer. The statutes in the states that allow KHDOWKEHQHȴWVZKLOHDOVRSURYLGLQJWKH wrongful death claims at any stage of protection and simplicity you need. development create unanticipated legal consequences. The statutes appear to make an effort to broaden the cause of action as :LWK$HWQD)XQGLQJ$GYDQWDJH\RXJHWWKHEHQHȴWV much as possible. Accordingly, a woman RIVHOIIXQGLQJZLWKSURWHFWLRQDJDLQVWȴQDQFLDOULVN pregnant with a four-week-embryo who 6R\RXFDQFRQWURO\RXUFRVWVȂVLPSO\ miscarries (which is not uncommon in the first trimester) could arguably open an Get a quote now estate on behalf of the embryo and sue her obstetrician for not preventing the miscar- SavingWithAFA.com riage, or sue any person or entity that she believed caused the miscarriage. Even fur- ther, if a woman freezes embryos as part of in vitro fertilization and one is lost, that embryo could have a wrongful death law- suit unless the statute explicitly precludes $HWQDLVWKHEUDQGQDPHXVHGIRUSURGXFWVDQGVHUYLFHVSURYLGHGE\RQHRUPRUHRIWKH$HWQD it. Inclusive in these (not entirely hypo- JURXSRIVXEVLGLDU\FRPSDQLHVLQFOXGLQJ$HWQD/LIHΖQVXUDQFH&RPSDQ\DQGLWVDɝOLDWHV $HWQD 7KLV thetical) examples are claims for lost earn- SURGXFWLVQRWDYDLODEOHLQHYHU\VWDWH

For The Defense ■ May 2019 ■ 35 MEDICAL LIABILITY AND HEALTH CARE LAW

DiDonato v. Wortman, 320 N.C. 423, 432 only invites a theoretical and philosophical legislature should address before allowing (N.C. 1987) (holding that damages ordi- question, it also invites trials within trials, any cause of action by the unborn. With- narily available in wrongful death suits are because it would require a plaintiff to prove out legislative consideration of the conse- not allowed for stillborn claims because consciousness of an unborn fetus by a pre- quences of expanding a cause of action for “these kinds of losses would necessarily be ponderance of the evidence—a seemingly wrongful death, there is no limit to how based on speculation rather than reason”); impossible task. broad the causes of action will be. Coveleski v. Bubnis, 391 Pa. Super. 409, 414 (Pa. Super. Ct. 1990) (“Before viability, any The Scope of Wrongful Death Practical Application determination of damages for death of the Actions Should Be Defined If you are in a state without a statute defin- fetus would be entirely speculative.”). The Through Legislation ing if and when an unborn fetus can bring fact finder is asked to speculate 70 or more Regardless of which standard a state a cause of action separate from the mother, years into the future to determine the total chooses, it must be through legislation, not it is worth challenging any such claim. lost earnings and damages for loss of enjoy- through the courts. Wrongful death causes Though many states have appellate author- ment of life. To ask an economist to predict of action create liability that did not exist at ity on the issue, many do not have statutory an unborn fetus’s lost earnings, had it been common law. Now every state in the nation definitions of personhood accompanying born, for the rest of its working life is inher- has some form of a wrongful death statute. their wrongful death statutes. Challenging ently speculative. There are no “lost” earn- It is not a court’s place to expand the scope stillborn or miscarriage wrongful death ings. Allowing the parents of an unborn of a statutory cause of action when the stat- cases means making the plaintiffs plead fetus to open an estate on behalf of the ute created a new liability that did not exist and prove such causes of action. If you are fetus and to bring a lawsuit for wrongful at common law. That decision should be left in a viability state, do not take it for granted death, which inevitably comes with a claim to the elected officials. Furthermore, by de- that a plaintiff has pled viability: make the for lost earnings, asks the jury to presume fining the scope of wrongful death actions plaintiff prove it. Additionally, just because the following: (1) this fetus would have though legislation, concerns with incongru- parents have been through probate court lived into adulthood; (2) the fetus would ity can be debated and addressed in the text and successfully opened an estate on behalf have cost the estate nothing to raise this of the statute. Imagine that a woman is six of a fetus does not mean that they have a fetus through childhood and into adult- weeks pregnant. She slips and falls on ice right to bring the cause of action. The de- hood; and (3) once this fetus went to col- and loses the pregnancy. Absent a provision fendant is often not even aware of the case lege (again, for free), it would get a job, have in the statute that prevents causes of action until after an estate has been opened in no living expenses, and give all of his or her against the mother, the father could open an probate, and accordingly the defendant money back to the parents. The law should estate on behalf of the embryo and sue mom has not had an opportunity to challenge not stretch far enough to allow such unreal- for wrongful death. After all, shouldn’t she that proceeding. In short, do not take for istic presumptions. Yet allowing an unborn have been more careful? That lawsuit will granted that the fetus bringing a lawsuit plaintiff to claim a lifetime of lost earnings include pain and suffering, loss of enjoy- has a statutory right to do so. does just that. ment of life, and lost earnings. Aside from economic damages, wrong- Creating and expanding wrongful death Conclusion ful death claims often include allegations causes of action through legislation, and Emotions aside, the ability to bring a of “pain and suffering.” However, courts not through the courts, allows these sce- wrongful death lawsuit comes down to require plaintiffs to prove conscious pain narios to be discussed, considered, and several practical considerations: (1) does a and suffering for a jury to consider pain prevented. For example, in Alaska, though fetus, who does not exist on his or her own and suffering properly as an element of the statute allows an embryo, or fetus, at (as opposed to as part of another human), damages. See, e.g., Intelisano v. Greenwell, any stage of development to bring a cause require a lawsuit separate from the par- 155 Conn. 436, 443 (Conn. 1967) (hold- of action for wrongful death, it explicitly ents; (2) does the death of a fetus result ing it was an error to submit the issue of states that it does not apply to acts or omis- in actual, provable damages to the estate, pain and suffering to the jury because “not sions that “are committed by a pregnant separate from damages to the parents; and only was there no evidence that the dece- woman against herself and her unborn (3) has the state in which the fetus is try- dent suffered pain but the only evidence child.” Alaska Stat. Ann. §§09.55.585. In ing to bring a wrongful death suit actually introduced was to the effect that the dece- Virginia, though there is a cause of action considered and legislated about the con- dent was unconscious”); Parker v. McCon- for fetal death regardless of the duration of sequences of allowing such a claim. The nell Mgf. Co., 334 N.Y.S. 2d 586 (N.Y. App. pregnancy, only the “natural mother of the authors of this article argue that (1) the Div. 1972) (setting aside an award for pain fetus” can bring such a cause of action, and cause of action for the loss of a fetus right- and suffering when a decedent was uncon- the statute explicitly states that “[n]othing fully belongs to the mother, not to an imag- scious from the time of an accident until in this section shall be construed to create a inary estate, and (2) to the extent that a death). This then raises the question of cause of action for a fetal death against the state wishes to expand that cause of action when a fetus can feel conscious pain and natural mother of the fetus.” Va. Code Ann. to a fetus of a gestational age of its choos- suffering. At what gestational age is a fetus §8.01-50(B). These examples are important: ing, it needs to be done through legislation, aware of his or her surroundings? This not they illustrate the critical issues that any not through judicial activism.

36 ■ For The Defense ■ May 2019