A difficult decision for the mother:
In the 2002 collision, Williams was a passenger in her sister’s car heading eastbound on Montrose. Manchester, 52, was heading westbound when he turned left in front of them, causing a near head-on collision.Williams, 32, and in the first trimester of her pregnancy, was taken to Advocate Illinois Masonic Hospital. The fetus was not injured in the collision.
Dr. James Keller, an obstetrician and gynecologist, testified in a deposition that Williams had three options: terminate the pregnancy right away and undergo surgery to repair her pelvis; delay the surgery until the second trimester to reduce the risk of drug and radiation exposure to the fetus or have surgery immediately without ending the pregnancy.
But Keller said the last two options could have led to problems for the fetus. Also, if Williams had waited, doctors would have had to rebreak her bones and they would have healed improperly.
(via Overlawyered)
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{ 4 comments }
Wrongful death is an improper claim legally , always, in the first trimester. Even if she had had a spontaneous abortion directly caused by injuries received in the collision.
It’s really irrelevent whether the pregnancy ended spontaneously, or as in this case, to mitigate risks of a bad outcome from the treatment of injuries received in the accident.
The appropriate claim is for the mother’s injuries, including pain and suffering from the loss, and other losses including medical costs, lost wages, etc. That would include the suffering caused by the loss of a wanted pregnancy. However, since the fetus was not viable, and there was no intent on the part of the person who caused the accident to end the pregnancy, common law does not recognizes this king of loss as a wrongful death, …and I am unaware of any state law that would permit a claim of wrongful death against the person who caused the accident.
This is a really hard one to decide. I definitely think she should be entitled to some kind of extra pain/ suffering damages as a result of the medically necessary abortion, but I’m not sure I’d agree with calling it wrongful death. I mean, as horrible as it sounds, she could have made the choice to postpone her own surgeries and possibly save her baby at the expense of her own recovery (although it is not clear whether the expense would have been her health or her life). All I know is that I would never want to be put in a position to have to make such a choice. But the driver’s actions didn’t directly kill anyone, and until the fetus reachs viability I’m not so sure I’d consider it a “death”. Suppose a fertility clinic erroneously discarded or mishandled someone’s frozen zygote- would that be grounds for a wrongful death suit too?
The “wrongful death” claim of a fetus is an interesting byproduct of the anti-abortion crowd’s attempt to grant person status to a fetus as a step toward the end goal of giving the fetus the same rights as a living American. Some states have in fact statutorily authorized these claims. And, they go hand in hand with some state laws which allow for a criminal charge for killing a fetus.
Law, medicine, and religion colliding.
Here are some similar articles:
http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=29029
http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=19490
http://courts.state.ar.us/opinions/old/95-450A.html
That last one is a med mal claim.
CJD
Another part of the whole debate that has arisen in those states that allow it are how do you quantify the damages to the fetus?
CJD
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