In its decision filed on December 30, 2016, the Supreme Court of Alabama (“Alabama Supreme Court”) held that the trial court erred in dismissing the plaintiff’s wrongful death claim based on the death of her previable (nonviable) unborn child, citing an amendment to Alabama’s Homicide Act that now defines the term “person,” when describing the victim of a criminal homicide or assault, as “a human being, including an unborn child in utero at any stage of development, regardless of viability.”
While the amended definition of “person” in the Homicide Act defined only the victim of a criminal homicide or assault, the Alabama Supreme Court stated that in light of the shared purpose of the Wrongful Death Act and the Homicide Act to prevent homicide, the amendment was an important pronouncement of public policy concerning who is a “person” protected from homicide. Thus, borrowing the definition of “person” from the criminal Homicide Act to define who is protected under the civil Wrongful Death Act made sense, and it would be incongruous if a defendant could be responsible criminally for the homicide of a fetal child but would have no similar civil responsibility.
The Alabama Supreme Court stated that the protection in the Homicide Act of unborn children in utero, regardless of viability, justifies that the Wrongful Death Act, in fact, permits a cause of action for the death of a previable fetus.
The Alabama Supreme Court rejected the medical malpractice defendant’s argument that the exception to the amendment to the Homicide Act, that provided for an exception to criminal liability for the death or injury of an unborn child caused by an unintentional error on the part of the pregnant woman’s treating physician, would apply to her (i.e., that the physician exception from criminal liability should also be extended to civil liability imposed by the Wrongful Death Act). The Alabama Supreme Court noted that the plain language of the exception limits its application to criminal liability. The Alabama Supreme Court further stated that although it would be unfair for a tortfeasor to be subject to criminal punishment, but not civil liability, for fetal homicide, it simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act. The Alabama Supreme Court held, “we find no compelling basis on which to extend the physician exception from criminal liability set forth in § 13A-6-1(b) to bar recover for tort liability imposed under the Wrongful Death Act” and that “the trial court erred in dismissing the wrongful-death claim on the ground that the wrongful-death claim against [the defendant physician] was precluded by § 13A-6-1(b).”
Alabama Medical Liability Act
Under the Alabama Medical Liability Act, the plaintiff has the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case. § 6-5-548(a), Ala. Code 1975. The plaintiff must also prove proximate cause.
The defendant physician argued that the plaintiff cannot establish that the death of her fetus was proximately caused by her because the plaintiff allegedly failed to establish that the pregnancy probably would have progressed and not miscarried but for the defendant’s care. The Alabama Supreme Court rejected the defendant’s argument, stating, “In light of the legislative recognition that a “person” includes an ‘unborn child in utero at any stage of development, regardless of viability,’ we do not believe that probable progression to viability is the appropriate relevant proximate-cause inquiry in this case. Indeed, requiring proof of future viability in order to establish the element of proximate cause would effectively reimpose the viability rule. Rather, we hold that, in order to establish proximate cause, [the plaintiff] was required to show that [the defendant’s] actions probably caused the death of the fetus, ‘regardless of viability'” and “there was ample evidence indicating that the administration of methotrexate had the intended effect of ending [the plaintiff’s] pregnancy such that the question of proximate cause warrants submission to the jury … We merely hold that the evidence indicating that [the defendant’s] treatment caused the death of the fetus was sufficient to create a jury question.”
Source Stinnett v. Kennedy, 1150889.
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