Alabama High Court Wrongful Death Decision Sets Stage for Increased Provider Risk

On May 9, 2012, plaintiff Kimberly A. Stinnett learned from her obstetrician, Dr. William Huggins, that she was pregnant. Two days later, when the fetus was at about five- to six-weeks gestation, Stinnett experienced abdominal cramping and fever. It was a weekend, and after hours, so when she called Dr. Stinnett, she got his answering service. Karla G. Kennedy, M.D., who was sharing calls with Dr. Huggins that weekend, told Stinnett to go to the emergency room, which she did. (Before this, Stinnett had suffered two miscarriages (in 2005 and 2007) and an ectopic pregnancy (in 2010), had necessitated the removal of her left fallopian tube.)

In the emergency room, Stinnett underwent an ultrasound, which showed intrauterine fluid in the endometrial cavity that could be a gestational sac. However, there appeared to be no yolk sac, fetal pole or cardiac activity. This, combined with a low pregnancy-hormone level and the plaintiff's medical history, lead Dr. Kennedy to suspect an ectopic pregnancy. Therefore, on May 12, 2012, Dr. Kennedy performed a dilation and curettage (D & C), to remove the lining from Stinnett's uterus, and a laparoscopy to determine whether the pregnancy was intrauterine or ectopic. The operative report said there was no evidence of ectopic pregnancy and the pathology report for the uterine tissue showed it was made up of “products of conception” (in this case, intrauterine chorionic villi).

Between the plaintiff and Dr. Kennedy, there was some dispute as to Dr. Kennedy's diagnosis on May 13, 2012: Stinnett said that Dr. Kennedy informed her that there was no ectopic pregnancy, but that she thought Stinnett had miscarried, while Dr. Kennedy denied saying this and asserted instead that on May 13 she still had a “high suspicion” that the plaintiff was maintaining an ectopic pregnancy. Dr. Kennedy ordered methotrexate to be administered to Stinnett in order to end the pregnancy.

The following day, Stinnett's obstetrician, Dr. Huggins, took over the plaintiff's treatment, ordering an ultrasound at the hospital that showed a “definite yolk sac” in her womb. In his discharge summary, Dr. Huggins stated that his patient was experiencing a failing intrauterine pregnancy, the cause of which might be the administration of methotrexate. On June 8, 2012, Stinnett miscarried.

Stinnett brought suit for medical malpractice against Dr. Kennedy on Nov. 29, 2012 (later adding the doctor's medical practice, Women's Care Specialist P.C.), alleging that the doctor had breached the standard of care by performing a D&C on her and injecting her with methotrexate even though she was not suffering an ectopic pregnancy. Stinnett admitted that the fetus would not have been viable outside the womb at the time of the alleged tort, but asserted it would have survived but for Dr. Kennedy's medical malpractice. She sought damages for her own mental and physical trauma. In addition, on behalf of her unborn child, Stinnett sought to recover wrongful death damages in accordance with § 6-5-391, Ala. Code 1975, titled “Wrongful death of a minor” (Wrongful Death Act).

The Nonviable Fetus As Injured Party

At trial in March 2016 in Jefferson Circuit Court (CV-12-903943), Dr. Kennedy and Women's Care filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss the plaintiff's wrongful-death claim. They noted in their motion that a wrongful death action based on the death of a non-viable fetus is permitted in Alabama under Mack v. Carmack, 79 So. 3d 597 (Ala. 2011). However, they argued, that case's decision was premised on a desire to establish “congruence” between the criminal Homicide Act, § 13A-6-1 et seq., Ala. Code 1975 — including an amendment to it, known as the Brody Act — and the civil Wrongful Death Act. The Brody Act had changed the definition of a “person” in the Homicide Act by extending it to include “an unborn child in utero at any stage of development, regardless of viability.” § 13A-6-1(a)(3), Ala. Code 1975. Dr. Kennedy and Women's Care noted, however, that the Brody amendment also contained an exception for imposing criminal liability for the killing of an unborn child; it would not be homicide for a physician by “mistake or unintentional error” to cause the death of a nonviable fetus. § 13A-6-1(b). The defendants therefore argued that, to achieve true “congruence” between the Homicide Act and the Wrongful Death Act, they should not be held civilly liability under the Wrongful Death Act for the death of Stinnett's nonviable fetus because any harm was caused by a physician's “mistake or unintentional error.”

The trial court agreed with the defense, concluding that “the existence of the 'physician's exception' to the Brody Act, codified at Ala. Code [1975,] 13A-6-1(b), prohibits the extension of civil liability under the Wrongful Death Act to licensed physicians who through mistake or unintentional error cause the death of a previable fetus.” Thus, the wrongful death claim was dismissed. With that portion of the case decided, the court also concluded that “the dismissal of the wrongful death claim extends to any claim brought by [Stinnett] for the recovery of mental anguish and/or Post Traumatic Stress Disorder which stems from the loss of the previable fetus.” Thus, Stinnett could seek damages only for pain and suffering incident to the D&C and the methotrexate injections themselves, not for any emotional harm caused by the loss of the fetus. After trial, the jury returned a defense verdict. Stinnett appealed as to Dr. Kennedy.

The Appeal

The only question on appeal was whether the trial court erred in dismissing the plaintiff's wrongful death claim against Dr. Kennedy for her previable fetus. To analyze this question, the court needed to consider whether, as the defense successfully argued at trial, the fact that there was a physician-mistake exception to criminal liability for the death of a non-viable fetus in the Alabama Homicide Act (criminal) meant that the same physician-mistake exception must be made when the claim was brought under Alabama's Wrongful Death Act (civil).

Because this claim had been dismissed in accordance with Rule 12(b)(6), Ala. R. Civ. P., the standard of review was as follows:

On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.

Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993).

The court began by explaining that although the Wrongful Death Act does not define the term “minor child,” Alabama's Supreme Court, in Mack v. Carmack, 79 So. 3d 597 (Ala. 2011), had in recent years declared that the Wrongful Death Act does indeed permit an action for the death of a previable fetus, who is a “minor child” under the law. (Mack involved a 12-weeks-pregnant woman injured in a car accident who miscarried several days post-accident. She was permitted to seek wrongful death damages on behalf of her unborn child.) The Mack decision diverged from two prior cases that had been relied upon by the Alabama legal community for years: Gentry v. Gilmore, 613 So. 2d 1241 (Ala. 1993), and Lollar v. Tankersley, 613 So. 2d 1252 (Ala. 1993). In these two decisions, released on the same day in 1993, similar scenarios had played out: Each involved a medical mistake and a nonviable fetus that died as a result thereof. In both cases, the court concluded that the Wrongful Death Act did not impose liability on the accused medical caregivers because the fetuses that died were not viable at the time of their injuries.

The Alabama Supreme Court of 1993 distinguished Gentry and Lollar from the three seminal fetus/wrongful death cases that came before it — Eich v. Town of Gulf Shores, 293 Ala. 95 (1974), Wolfe v. Isbell, 291 Ala. 327 (1973), and Huskey v. Smith, 289 Ala. 52 (1972) — because in those cases, the fetus that died was either viable at the time of injury. or lived outside the womb for a time before succumbing to its injuries.

So, what the court had before it was an evolution of jurisprudence on the issue of liability and the premature death of a non-viable fetus — from the imposition of liability in civil cases (Eich, Wolfe and Huskey), unless the fetus would not have been viable outside the mother's womb (Gentry and Lollar), to the imposition of liability in civil cases even if the fetus would not have been viable outside the womb (Mack).

That left the question of the Brody Amendment, codifying an exemption from liability under the Homicide Act if a physician accidentally kills a fetus while rendering medical care. Should that exemption in the criminal context be extended to civil cases?

The Stinnett court reviewed voluminous amounts of information, from prior in- and out-of-state case law to legal treatises and philosophical musings. These cited authorities and experts all tended to agree that a requirement of fetal viability prior to the imposition of liability for harm to an unborn child was faulty. For example, the following excerpt was placed in the record:

While not every jurisdiction has stopped using the born-alive test first set out in Bonbrest v. Kotz [65 F. Supp. 138 (D. D.C. 1946)], most have abandoned the born alive rule, finding it stringent and unjust. Similarly, the single-entity view was rejected as archaic and outmoded due to subsequent developments in science and technology. The viability test, at least in its application to tort law, is likewise outmoded and archaic. The viability test does not affect the defendant's legal duty, and its relative nature makes it an unsatisfactory criterion. As is the case with any tort the issues at hand are first, whether the defendant owed a duty of care to avoid unreasonable risk of harm to others, second whether the defendant breached that duty of care, and third whether that breach of duty caused the harm. Although the age of a defendant's victims, whether they are born or unborn, may be relevant in the analysis of the reasonable standard of care for a particular case, it does not act as a bright line preventing the case from ever reaching a jury. The viability line, although useful as a guide for abortion cases, is an arbitrarily drawn line, and if the law relies too heavily on arbitrary line drawing it may very likely become … mechanical, superficial, dry, sterile formalism … .

Daniel S. Meade, Wrongful Death and the Unborn Child: Should Viability Be a Prerequisite for a Cause of Action?, 14 J. Contemp. Health L. & Pol'y 421, 441 (1998) (footnotes omitted).

“Nonetheless,” stated the Stinnett court, “at the time Lollar and Gentry were decided, there remained one significant factor that provided some support for the viability rule: Alabama's homicide statutes applied only to persons 'who had been born and [were] alive at the time of the homicidal act.' § 13A-6-1(2), Ala. Code 1975.7. In concurring in the result in both Gentry and Lollar, Justice Houston wrote specially and used the language of the homicide statute to argue that Eich should be overruled because that decision eliminated any distinction based on the injured fetus being born alive. Justice Houston argued for an approach that he believed would be 'consistent with the criminal law.'”

Now that the criminal law had been altered, Dr. Kennedy was arguing in Stinnett for an approach that would keep the Wrongful Death Act consistent with the Homicide Act by exempting physicians from civil liability for harming a fetus while rendering medical care, just as they would be exempted from criminal liability for doing the same.

The Stinnett court, unwilling to accept Dr. Kennedy's argument, stated:

This attempt to harmonize who is a “person” protected from homicide under both the Homicide Act and Wrongful Death Act … was never intended to synchronize civil and criminal liability under those acts, or the defenses to such liability. Although we noted that 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. This argument, followed to its logical conclusion, would prohibit wrongful-death actions arising from a tortfeasor's simple negligence, something we have never held to be criminally punishable but which often forms the basis of wrongful-death actions. … Such a result would unduly limit the reach of the Wrongful Death Act and undermine its purpose to prevent homicide. Thus, we fail to see how applying an exception from criminal punishment to civil liability would promote “congruence” between the Homicide Act and the Wrongful Death Act.

Based on this logic, Alabama's Supreme Court declined to extend to physicians and their agents the protections against liability for fetal death found in the State's Homicide Act to actions brought under the Wrongful Death Act. The Stinnetts' wrongful death action has now been returned to the lower court for trial on the issues.

Conclusion

Right-to-life advocates are taking the Stinnett decision as a victory and are likely to use it to push back against advancements in abortion rights. For example, Liberty Counsel, which describes itself as “an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family,” released a statement about the case. In it, Mat Staver, Founder and Chairman of Liberty Counsel, said, “Liberty Counsel applauds the Alabama Supreme Court and Justice Tom Parker for defending the legal rights of the unborn as clearly stated in Alabama law. We strongly urge other judges to do likewise as the value of human life is not a negotiable matter. The womb should be the safest place for a child and it must be legally protected. It's time to turn the tables on Roe v. Wade.”

Apart from this, of course, Alabama obstetricians and other medical caregivers can anticipate having to defend themselves against wrongful death liability when a fetus dies, even very early on in a pregnancy. The implications of this are significant, as Dr. Kennedy pointed out in an alternative (but ultimately rejected) argument in this appeal: When a pregnancy is apparently problematic, requiring that medical decisions be made to preserve the life and health of the mother, the prospect of a wrongful death suit over the loss of the fetus is daunting. Whom to save?

The Stinnett court dismissed this concern by noting that “physicians such as Dr. Kennedy are already provided a level of protection from civil liability under the provisions of the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975. That act requires a plaintiff in a civil action to establish that the injury or death was proximately caused by a deviation from the standard of care proven, generally, by expert testimony from a similarly situated health-care provider.” How many physicians will find this “protection” comforting?

***** Janice G. Inman is Editor-in-Chief of this newsletter.