Alabama doctors can be sued for death of unborn, pre-viable child

The state's high court rules that a civil claim is consistent with a state criminal law intended to protect fetuses.

By — Posted March 12, 2012

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Parents of unborn children can sue doctors for wrongful death, whether or not the fetus was able to survive outside the woman's uterus, the Supreme Court of Alabama has ruled. The opinion reverses a trial court decision that said Alabama law does not permit lawsuits on behalf of fetuses unable to live outside the womb.

The ruling reflects a growing shift among state courts to expand liability in cases of injured unborn children, said David M. Smolin, a law professor and director of the Center for Biotechnology, Law and Ethics at the Cumberland School of Law at Samford University in Birmingham, Ala.

"Alabama is not sticking out as strange here," Smolin said. "This is part of a broader trend in tort and criminal law to extend protection" to unborn children in wrongful death cases.

The ruling means that Amy Hamilton may sue three Alabama physicians and a medical practice for allegedly causing her son's death. Hamilton visited Isbell Medical Group in Fort Payne, Ala., in 2005 for a routine ultrasound and a consultation regarding a viral infection.

The physician Hamilton was scheduled to see was unavailable, as was the ultrasound technician, according to court documents. Medical staff allegedly told Hamilton to wait for her next appointment two weeks later.

She returned to the office twice, but each time doctors told her an ultrasound was unnecessary, Hamilton alleges. About a month later, an ultrasound was performed on Hamilton. At that time, a technician said the fetus was smaller than normal. The technician also was concerned about a fold growing on the back of the fetus's neck.

After the ultrasound, Hamilton met with obstetrician-gynecologist Warren Scott, MD, who informed her that the fetus may have hydrops, which was causing the fold, according to the court's ruling. Hamilton asked for a referral to a perinatologist, but that request allegedly was declined, and Hamilton was instructed to wait a few more weeks for the condition to reverse itself. In March 2005, she returned to the medical practice feeling ill. An ultrasound showed that the fetus was not alive. Labor was induced, and she delivered a stillborn boy.

Hamilton sued, claiming that the doctors caused her son's death and she was entitled to damages under the state's wrongful death law. The doctors and Isbell Medical Group denied any wrongdoing. The defendants requested that the case be dismissed because Hamilton did not state a valid claim. A trial court agreed, throwing out the lawsuit, and Hamilton appealed.

State Supreme Court justices overturned the lower court decision. In their Feb. 17 opinion, judges noted that revised criminal statutes in Alabama permit people to be charged with two deaths if they kill a pregnant woman and her unborn child. Allowing civil claims for the death of nonviable children is consistent with criminal law, the court said.

"In accordance with the numerous considerations discussed throughout this opinion, and on the basis of the Legislature's amendment of Alabama's homicide statute to include protection for an unborn child in utero at any date of development, regardless of viability ... we hold that the Wrongful Death Act permits an action for the death of a pre-viable fetus," the court said.

More states allow similar claims

Attorneys for the physicians have petitioned the state high court for a rehearing, said Scott M. Salter, a lawyer for the defendants. He declined to comment on the ruling.

The decision justly holds doctors and others accountable if an unborn child dies due to medical negligence, said Rip Andrews, Hamilton's attorney.

"The biggest impact is that [the decision] closes a very simple, but very real, loophole that existed in our law," he said. "Anyone injured or killed through some type of very significant negligence of a doctor has a right to a cause of action. Before, there was just no remedy."

The majority of states have civil and criminal protections in place for unborn children, Smolin said. At least nine states specifically permit recovery in the wrongful death of pre-viable children, according to the Alabama opinion. Two more states, Georgia and Mississippi, allow recovery for the wrongful death of a pre-viable child if the fetus is able to move within the womb.

Utah is one of the latest states to define a fetus as a "minor child" for the purposes of suing health professionals. In Carranza v. United States, the Utah Supreme Court said the state's wrongful death statute includes recovery for the loss of an unborn child. The law's language does not define the term "minor child," but, in general, use of the term "child" may refer to a young person, a baby or a fetus, the court said in its December 2011 opinion.

Utah justices, however, had mixed opinions about whether a fetus must be viable for recovery to be allowed. No definitive stance on viability was issued, said Brett Boulton, attorney for the plaintiffs. Instead, the question will have to be answered on a case-by-case basis. Attorneys for the defendants declined to comment.

A boost to the personhood movement?

Despite the Alabama ruling being consistent with other decisions, the opinion has received much media attention because of one judge's references to abortion, Smolin said.

In concurring with the majority, Justice Tom Parker indicated that the ruling in the historic Roe. v. Wade case should be reversed.

"Since Roe was decided in 1973, advances in medical and scientific technology have greatly expanded our knowledge of prenatal life," Parker said. "The development of ultrasound technology has enhanced medical and public understanding, allowing us to watch the growth and development of the unborn child in a way previous generations could never have imagined. Similarly, advances in genetics and related fields make clear that a new and unique human being is formed at the moment of conception, when two cells, incapable of independent life, merge to form a single, individual human entity."

Parker said the viability standard relied upon in the Roe case was based on inaccurate history and that Roe's influence should be rejected by other states "until the day it is overruled by the U.S. Supreme Court."

Anti-abortion organizations, including Personhood USA, praised Parker's opinion, saying the decision affirms that unborn children are living persons.

"This decision is similar to the courageous decisions issued by state judges prior to the Civil War, ignoring what was clearly the unjust precedent established by the Dred Scott case," said Gualberto Garcia Jones, legal analyst for Personhood USA, a national group that advocates laws defining fetuses as people. "These judges were foreshadowing the 13th and 14th Amendments just as Judge Parker is, today, foreshadowing a constitutional Personhood Amendment."

A recent attempt by Personhood USA to have Mississippi voters approve an initiative that would define a fertilized egg as a person with full legal rights failed in November 2011. The Colorado-based group is working to get the measure on 2012 ballots in several states. So far, a personhood bill has been approved by the Oklahoma Senate. A similar measure passed the House in Virginia, but was rejected by the Senate, which voted to send the bill back to committee for further review next year.

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Case at a glance

Can doctors be sued for the wrongful death of an unborn, pre-viable child?

The Supreme Court of Alabama said yes. The court ruled that allowing civil actions for the death of nonviable children is consistent with criminal law in the state.

Impact: Physicians in the state now may be sued for wrongful death whether or not a fetus is able to live outside the womb.

Amy Hamilton v. Warren Scott MD, Supreme Court of Alabama, Feb. 17

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