In an opinion filed on January 10, 2014, a Virginia appellate court held that a fetus who was injured in the womb due to alleged medical malpractice is considered a “patient” and therefore her medical malpractice claim arose under Virginia’s Medical Malpractice Act, Code Sections 8.01-581.1, et seq. (“Act”) and was subject to the Act’s statutory cap of damages (Code Section 8.01-581.15).
The Underlying Facts
The fetus’ mother was referred by her family doctor to a specialist during the third trimester of pregnancy because the mother had developed gestational diabetes. The specialist performed amniocentesis to determine if the fetus’ lungs were mature enough to induce early labor. Complications that arose from the unsuccessful amniocentesis led to a subsequent Caesarean section delivery the same day. However, the baby was born with damaged kidneys and cerebral palsy. The baby’s father filed a medical malpractice case on her behalf and the medical malpractice jury returned a verdict in her favor in the amount of $7 million.
The trial court reduced the jury’s verdict to $1.4 million pursuant to the Act’s cap on damages after determining that the baby was the specialist’s patient because at the time she was born alive, she became a “patient” under the Act. The plaintiff appealed.
The Act defines “patient” as “any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services in accordance with § 8.01-225 or 44-146.23.” The plaintiff alleged that at the time that the specialist injured her, she was a fetus and therefore did not meet the definition of a “patient” because she was not yet a “natural person.”
The appellate court stated its rule that a fetus is part of the mother, and injury to the fetus is injury to the mother. If the fetus is never born alive, the fetus never develops a legal claim, but the mother may recover for the physical injury and mental suffering associated with a stillbirth. However, if the child is born alive, the child may bring a claim for the injury suffered in utero.
The appellate court held that the amniocentesis was performed, at least in part, for fetus’ benefit to determine whether her lungs were developed enough that she could be safely delivered. When the specialist performed the amniocentesis, he was providing health care to the fetus and her mother. If the fetus had never been born alive, her mother would have been able to recover for the physical and emotional injuries associated with a stillbirth. However, once the fetus was born alive, she became a natural person under the Act. Upon birth, she became a patient of the specialist under the Act and had her own claim against the specialist.
(In a concurring opinion, one of the justices would have held that the fetus became a “patient” as defined by the Act when the specialist performed the amniocentesis (the date when she received the alleged negligent treatment) because the Act’s definitions of “patient” and “health care” focus on whether and when treatment is, or should have been, performed by a health care provider, not on when the patient has a cause of action.)
Source Marissa R. Simpson, an infant, who sues by her father and next friend v. David Roberts, et al., Record No. 121984.
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