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Wrongful Death Before Birth 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.
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