Posted on 08/29/2004 11:51:46 PM PDT by nickcarraway
Texas high court rules 8-1 the parents of a stillborn baby can't sue hospital< P>AUSTIN - The parents of a stillborn child cannot sue medical practitioners for negligence because a fetus is not a "person" or "individual" under state laws, the Texas Supreme Court has ruled.
The court in an 8-1 ruling overturned a decision of the 2nd Court of Appeals in Fort Worth that Tara Reese could sue a Fort Worth hospital for the mental anguish she suffered after her baby died in utero in 1998.
Lawyers for Reese had urged the court to follow 37 other states that allow wrongful-death claims for stillborn children. Texas is one of 10 states that do not recognize such claims.
The Texas Legislature in 2003 passed the Prenatal Protection Act, which defines "individual" to include an unborn child at every stage of gestation from fertilization to birth. But lawmakers then said that physicians or other licensed health care providers could not be sued if the death is the result of a lawful medical procedure.
Chief Justice Tom Phillips, writing for the majority, said the parties "do not contend that this case involved anything other than a lawful medical procedure, so this case would not be covered even if the new statute were applicable."
According to the opinion, Reese went to the Fort Worth Osteopathic Medical Center emergency room in her seventh month of pregnancy, complaining of a racing pulse and dizziness.
She alleged that the doctors were negligent in caring for her and the fetus.
Phillips said the court was following its 1987 decision in Witty v. American General Capital that held the Legislature did not intend to include a fetus when it enacted the wrongful-death and survival laws in 1860 and 1895. The court said Reese could pursue a claim against the hospital for the injuries she sustained.
Justice Steven W. Smith dissented. He said the case was too important to be resolved solely on the basis of prior case law.
Jerry Bullard, a lawyer for Reese and her husband, Donnie Reese, said he was disappointed in the ruling.
"The court missed an opportunity to re-examine and overrule Witty as it applies to viable unborn children, restore sanity to an area of jurisprudence that is morally and legally repugnant, and bring Texas into step with those states that recognize the personhood of the unborn child," Bullard said.
Earl Harcrow of Fort Worth, who represents the hospital, said he thinks the court did the right thing.
"That's what the law has always been," Harcrow said. "The court of appeals tried to change it, but the Supreme Court did not go along with that."
The wording of an anti-abortion law should go something like this...
Through no willful act may an unborn child be in anyway harmed.
It would rule out accidents and natural causes.
Ironic in that Roe v. Wade was based on Texas inheritance law; specifically a law which would no longer stand challenge given medical advances.
So what the court ruled here, is that malpractice when it comes to a fetus, is non-existant. Now there's a confidence builder. The physician maternal client relationship has never been stronger. LMAO
Edwards made his millions suing for damaged "fetuses." According to him, the damaged fetus is worth big bucks - in his pocket, anyway.
"The court missed an opportunity to re-examine and overrule Witty as it applies to viable unborn children, restore sanity to an area of jurisprudence that is morally and legally repugnant, and bring Texas into step with those states that recognize the personhood of the unborn child," Bullard said.
Sounds like the baby was indeed a person that died in utero.
Is the problem because her case occured prior to 2003?
Rather look at it as a blow against the pro-life cause, look at the bright side. An Edwards wanna-be saw his paycheck go up in smoke when the ruling came down.
Just read last week that a pregnant illegal alien could return to the United States because her "fetus" was an American Citizen.
I just don't get it!?
What is a fetus? A baby the pro-choicers don't want.
What is a baby? A fetus you DO want.
Please let me know if you want on or off my Pro-Life Ping List.
Why should they be able to sue anyway? Sounds like Edwards' falsely blaming doctor's delivery techniques for Cerebral Palsy.
=== the hypocrisy of the left's arguments in picking and choosing which scenarios they can call a fetus a person, whenever it is in their own selfish best interest.
Huh?
Why blame solely the left when it's President "Pro-Life" Bush's ESCR ruling which nailed open the Most Profitable window of Non-Personhood yet?
Without more detail, I don't see the culpability of the hospital for the stillborn child.
I'm sick of parents who sue for Perfect Babies. It's just such an attitude which has only fueled the fire of More Perfect artificials and driven OB-Gyns out of business for failure to afford the med-mal insurance necessary to ensure a Perfect Birth for every parent.
When did folks get the notion they not only had a "right" to a child but a "right" to a perfect birth?
=== Through no willful act may an unborn child be in anyway harmed. It would rule out accidents and natural causes.
Sorry ... Republicans and their constituents have been very firm about the right to off a kid who came into being courtesy of rape or incest.
I'm afraid that "lesser evil" stands ... and assures us that abortion NEVER will be illegal again.
One thing the story said, which if true, makes the Court's legal decision fairly solid, is that the act itself indemnified doctors.
"But lawmakers then said that physicians or other licensed health care providers could not be sued if the death is the result of a lawful medical procedure."
Now -- I can't square that indemnity with the Act that defines them as an individual -- but it seems to me that the Court did its job here. That is, the Court enforced the law. (Which, by the way, is exactly what we conservatives always demand).
It seems the battle to change this law ought to bed fought at the legislative level. The law should recognize that "individuals" have a right or cause of action for wrongful or negligent treatment.
If I had to guess -- the heart of these cases come from Plaintiff's attorney's unable to get around informed consent forms filed and signed by the parents. Thus -- they are trying to give a separate cause of action to the individual to bring on his or her own. Just a guess.
I believe the unborn are persons with distinct rights. That battle should be fought at the legislative level. With respect to the Court here, based on the skimpy facts provided, the Court enforced the indemnity provision in the law -- it appears -- without reaching or having to reach the issue of individuality. Again, in order have a substantive discussion -- I will need to read the opinion.
What needs to happen is the law needs to be changed, not bash the Justices for doing their job and upholding the law as it is currently written.
A Constitutional Amendment is the only remedy. Why has it not been introduced like the Marriage Amendment?
I would love to see a Human Life Amendment to the US Constitution. But I don't see that happening in my lifetime.
-- Joe
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