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Alabama Supreme Court Reaffirms Right to Bring Wrongful Death Action on Behalf of Fetus

Just last fall, the Alabama Supreme Court overruled a long line of cases holding that a mother or father could not sue for the death of fetus that was not “viable.”  These older cases held that unless the parent could present evidence that the fetus would have been able to live outside the womb at the time of the injury or death, then the parent could not sue for wrongful death.  The standard of proof in those older cases was simply whether the parent submitted “substantial evidence” that the child more likely than not (just greater than 50%) would have lived but for the injury causing death.

Before the court’s decision last fall, the only remedy for an injury that caused the death of a nonviable fetus was a personal injury action on behalf of the mother.  Such claims were well known to provide little legal compensation unless the mother herself suffered serious injury as well in the accident.

It might be easier to explain with an example.  Assume that a mother who is eight weeks pregnant was injured in a car wreck caused by the fault of another person.  Also assume that the injuries to mother also severely injured her fetus, to the point that the injuries were so severe that the fetus’s heartbeat stopped, labor had to be induced, and the child was stillborn.  A sad situation indeed.

Under the old court decisions, no remedy was available for the death of the child.  The mother could sue for her personal injuries, but nothing else.  Under the new court decision, the parent or parents could sue for damages under the wrongful death statute.

Several days ago, the Alabama Supreme Court issued yet another opinion on this issue.  In Hamilton v. Scott, the court considered whether a mother could assert a medical negligence claim against her health care providers for failing to do more to prevent the death of her unborn child.  The trial court dismissed the case, ruling that the evidence indicated that the child was not viable, and thus no claim existed.  The Alabama Supreme Court reversed and held that the mother could pursue her claim.

Fox News picked up the story about the case, and noted that the court, and at least one of the justices, noted that the controversial abortion decision of Roe v. Wade, no longer applied to Alabama’s wrongfuld death law.  Fox News also reported that one of the justices challenged the continued use of Roe v. Wade in tort and criminal law, calling that application “outdated.”

I report on these decisions not to take a position on these controversial issues one way or the other, but to let people know that the law has changed in Alabama, and that the Alabama Supreme Court seems committed to sticking with its decision overturning the older line of cases.  From here on out, it seems that unborn children, even if not “viable” outside the mother’s womb will have the right to sue for injuries that cause their death.

Edwin Lamberth

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