Comments on: A woman has an abortion, sues for wrongful death http://www.kevinmd.com/blog/2006/06/woman-has-abortion-sues-for-wrongful.html Tue, 14 Feb 2012 22:28:00 +0000 hourly 1 By: Anonymoushttp://www.kevinmd.com/blog/2006/06/woman-has-abortion-sues-for-wrongful.html#comment-63833 Anonymous Tue, 06 Jun 2006 03:46:00 +0000 http://clients.emmense.com/kevinmd/2006/06/a-woman-has-an-abortion-sues-for-wrongful-death.html#comment-63833 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?<br/><br/>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

]]> By: Anonymoushttp://www.kevinmd.com/blog/2006/06/woman-has-abortion-sues-for-wrongful.html#comment-63830 Anonymous Tue, 06 Jun 2006 03:05:00 +0000 http://clients.emmense.com/kevinmd/2006/06/a-woman-has-an-abortion-sues-for-wrongful-death.html#comment-63830 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.<br/><br/>Law, medicine, and religion colliding. <br/><br/>Here are some similar articles:<br/><br/>http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=29029<br/><br/>http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=19490<br/><br/>http://courts.state.ar.us/opinions/old/95-450A.html<br/><br/>That last one is a med mal claim.<br/><br/>CJD 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

]]> By: Anonymoushttp://www.kevinmd.com/blog/2006/06/woman-has-abortion-sues-for-wrongful.html#comment-63820 Anonymous Mon, 05 Jun 2006 23:14:00 +0000 http://clients.emmense.com/kevinmd/2006/06/a-woman-has-an-abortion-sues-for-wrongful-death.html#comment-63820 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? 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?

]]> By: Compensable but not WDhttp://www.kevinmd.com/blog/2006/06/woman-has-abortion-sues-for-wrongful.html#comment-63808 Compensable but not WD Mon, 05 Jun 2006 16:06:00 +0000 http://clients.emmense.com/kevinmd/2006/06/a-woman-has-an-abortion-sues-for-wrongful-death.html#comment-63808 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.<br/><br/>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.<br/><br/>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. 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.

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