Woman can sue doctor for wrongful death after miscarriage, Alabama Supreme Court rules
By Kent Faulk | kfaulk@al.com
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on January 03, 2017 at 10:48 AM, updated
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The Alabama Supreme Court on Friday reversed a Jefferson County judge’s order dismissing a woman’s wrongful death claim against a doctor for her miscarriage when she was about six weeks pregnant.
One justice said the decision reaffirms the Alabama Supreme Court’s previous ruling that from the point of conception children are protected by Alabama’s wrongful-death law.
Justices ruled that a circuit judge had erred when he said the doctor was immune from civil lawsuits for wrongful death involving the death of a fetus that had not yet reached the stage of viability.
The state’s Wrongful Death Act extends immunity from criminal prosecution to doctors for “a mistake or unintentional error causing the death of a pre-viable fetus.” But the judge, based on previous rulings, had extended that to also include immunity from civil lawsuits.
The decision by the Alabama Supreme Court allowing the wrongful death claim to proceed to trial was unanimous, with all eight justices of the current court concurring in the result.
Justice Tom Parker wrote a special concurring opinion.
“Today, this Court again reaffirms the principle that unborn children are protected by Alabama’s wrongful-death statute from the moment life begins at conception,” Parker wrote. “This has not always been the case in Alabama. Alabama used to deny unborn children who had not yet grown strong enough to survive outside of their mother’s womb the protections of Alabama’s wrongful-death statute.”
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Parker stated that Alabama previously applied the viability standard established in Roe v. Wade – the U.S. Supreme Court decision in 1973 that gave women the right to abortions before fetuses are viable – “to determine which unborn children received protection under the law and which did not.”
However, in a 2011 decision in Mack v. Carmack the Alabama Supreme Court determined that the viability standard established in Roe does not apply to wrongful-death law, Parker stated. “The Court reaffirms that principle today,” he wrote.
“The use of the viability standard established in Roe is incoherent as it relates to wrongful-death law because, among other reasons, life begins at the moment of conception,” Parker wrote. “The fact that life begins at conception is beyond refutation.”
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In his widely noted opinion Friday, Parker, a staunch and vocal conservative, said the concept of viability in Roe was mistaken and does not have any effect on laws governing the rights of the unborn apart from the abortion question.
Parker’s stance on the issue is widely known.
In a 2014 article, the non-profit news organization ProPublica wrote that Parker was key to the “personhood movement” in an ultimate attempt to overturn the U.S. Supreme Court decision in Roe v. Wade The publication argued that Parker was establishing the legal rights for the unborn in his opinions that ultimately could be used to overturn Roe v. Wade.
Parker, in an interview with AL.com earlier this year, called the ProPublic article a hit-piece and said he never used the word “personhood” in any of the decisions.
The fact that life begins at conception is beyond refutation” – Alabama Supreme Court Justice Tom Parker
“I have written opinions joined by the rest of the court that have recognized the right of parents to file a wrongful death lawsuit involving an unborn child from the point of conception,” Parker said. “Personally I have written against Roe v Wade and the lack of historical legal or medical basis for that decision and I have done that from one of my opinions.”
Last week’s decision by the Alabama Supreme Court overturned a ruling by Jefferson County Circuit Court Judge Jim Hughey in the case of Kimberly Stinnett v. Dr. Karla G. Kennedy.
“I think it was a huge decision to clarify the law,” Steve Heninger, the Birmingham lawyer who represented Stinnett, said of the Alabama Supreme Court ruling.
