A D.C. Superior Court judge has allowed a $200,000 medical malpractice lawsuit on behalf of a fetus to go to trial over the objections of a local hospital, which claimed that the fetus cannot sue because it is not a person.
Lawyers for Greater Southeast Community Hospital and an obstetrician there had asked Judge Leonard Breman to dismiss the lawsuit, saying that the fetus, which died inside its mother's womb during the ninth month, had no legal personality or identity and could not sue "until it sees the light of day."
When the trial began Monday, lawyers for the fetus introduced themselves as representing the "Pickney Baby Estate." Throughout their arguments, they have referred to the fetus as "Baby Girl Pinckney." Meanwhile, attorneys for the hospital have referred only to the "fetus" and said it would not have survived outside the womb.
Parents or relatives often file malpractice lawsuits under the District's wrongful death laws for the losses they suffer when, for example, a family breadwinner dies. But what makes this case unusual is that local lawyers could not recall any trial in which the "estate" of a stillborn fetus attempted to collect damages under the District's Survival Act. The law specifically allows estates of deceased people to sue for damages for alleged malpractice.
Braman said he would make a final ruling on the right of the fetus to be awarded damages at the conclusion of the trial. Of course, no such ruling would be necessary if the hospital and doctor win the case.
The Pinckney case stemmed from an incident two years ago when Diane M. Pinckney, than about 32 to 37 weeks pregnant, entered Greater Southeast Community Hospital to have her baby.
Pinckney's attorney, Jack H. Olender, told the jury that Pickney's husband had been assured that the fetus' health and heartbeat were normal."You'll be a proud father this afternoon," Olender said the father was told by the doctor.
Later on the afternoon of Feb. 12, 1979, howerver, there were complications. The mother's temperature shot up, and evidence of an infection in the womb was detected, according to court records. The Pinckney's asked the doctor to deliver the baby immediately, but were turned down. Olender said. "The baby is better off inside of you," Olender said the mother was told.
Eventually, hospital personnel could no longer detect the fetal heartbeat, and it was later determined that the fetus had apparently died in the womb. It was extracted stillborn through a surgical procedure.
The malpractice suit was subsequently filed against the physician and hospital, claiming that the fetus died in the mother's womb as a result of malpractice. The suit claimed the infection of the mother's womb was not diagnosed early enough to save the fetus, that the mother and fetus' vital signs were not monitored properly and that the fetus should have been delivered while it was still alive. Diane Pinckney also filed a separate claim asking compensation for her injuries.
Lawyers for the fetus claim that the "evidence in the case . . . will show that the child was indeed viable" in the womb and that "she was capable of an existence separate and independent from her mother."
Because of the parents' educational background, a life expectancy of 73.1 years and the likelihood that their offspring would go to college, it was possible their offspring would have a life-time after-tax income of about $192,000, a former Georgetown University economist estimated in a pretrial court statement.
Attorneys for the hospital and doctor, however, urged the judge to dismiss the lawsuit filed on behalf of the fetus, claiming that no lawsuit may be brought on behalf of "an infant never born alive."
The lawyers contend that calculating and awarding damaged to the estate of a stillborn fetus is highly spepculative. "It is almost impossible to prove to what extent an unborn child, but for its death, would have been capable of earning a livelihood."
The hospital's and doctor's lawyers have acknowledged that children who suffer prenatal injury and go through life brain-damaged would be entitled to sue for compensation. However, they argue that a fetus hardly can be considered to have survived if it never lived outside the womb.