A D.C. Superior Court jury yesterday awarded $75,000 in damages to the "estate" of an unborn fetus which had filed suit against an obstetrician at Greater Southeast Community Hospital claiming its death inside the mother's womb was the result of medical malpractice by the doctor.
The jury deliberated for five days over the unusual case before finding against Dr. Edward C. Werner. At the same time, however, the jury did not reach a verdict on whether the hospital itself was responsible for the fetus' death.
The case was significant because apparently it is the first time the "estate" of a still-born fetus has successfully collected damages under the District's Survival Act, which specially allows estates of deceased people to sue for damages for alleged malpractice. Often, parents or relatives file malpractice lawsuits under the District's wrongful death laws for the losses they suffer when, for example, a family breadwinner dies.
Lawyers for the doctor and hospital had asked Judge Leonard Braman to dismiss the suit, claiming that no lawsuit could be brought on behalf of "an infant never born alive" because it had no legal personality or identity. They also argued that it was "almost impossible" to award damages based on speculation about how much the fetus would have earned had it lived.
Braman said, however, he would let the case go to trial and rule on that issue afterwards. Defense attorneys may now ask the judge to declare the verdict invalid.
Throughout the trial, the attorney representing the fetus' estate, Jack H. Olender, referred to the fetus as "Baby Girl Pinckney" (the mother's name is Diane Pickney), while lawyers for the hospital and doctor used the word "fetus."
"The Pinckneys feel vindicated as a matter of principle," Olender said after the verdict. "But they feel somewhat bad because they feel that the [$75,000] amount is not commensurate with the value of the baby's life."
The fetus' estate had sought $192,000 based on a former Georgetown University economist's estimate that had the fetus survived, attended college and lived to age 73, it might have earned that much in lifetime after-tax income.
The case stemmed from an incident in February 1979 when Diane M. Pickney, then about 32 to 37 weeks pregnant, entered Greater Southeast Community Hospital to have her baby.
Pickney's husband, Elmer, had been assured that the fetus' health and heartbeat were normal, Olender told the jury.
However, the lawsuit claimed an infection in the womb and changing vital signs were not diagnosed early enough, resulting in the fetus' death. The suit claimed the fetus should have been delivered while it was alive. The fetus later was extracted stillborn through a surgical procedure.
The mother also filed a separate claim asking compensation for her injuries, but the jury ruled in favor of the doctor and the hospital.