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."
I agree, there is no chance to get the 2/3 vote necessary. The only way to overturn RvW would be to appoint conservative judges.
I would like to comment that I disagree with virtually all sides of the abortion debate. The issue in this article is, 'are fetuses persons?' The answer is simply, yes, ie., all fetuses are individuals or individuus (can not be divided). A conceptus or early embryo, less than 100 cells or so, is dividuus or capable of being divided into more than one person, eg., identical twins.
I disagree with the Court's opinion that a fetus is not a person. On the other hand I do not believe the Medical proffession is neglent everytime a baby is born dead, less than perfect, or because the ilk of John Edwards needs a new beach houes, town house or country estate.
Tt's sure not a puppy.
Fetuses: Justices aren't all that humane either.
"I'm afraid that "lesser evil" stands ... and assures us that abortion NEVER will be illegal again."
With Christ ALL things are possible!
This is exactly the reason I support a constitutional amendment.
I never thought the iron curtain and the Soviet Union would fall in my life time, but they did. Whether it happens during my life time or not, the laws upholding abortin will also fall.
"Jerry Bullard, a lawyer for Reese and her husband, Donnie Reese, said he was disappointed in the ruling."
John Edwards might have won the case - he has/had an excellent record in 'personal injury' cases. :)
Neither is a liberal.
=== I never thought the iron curtain and the Soviet Union would fall in my life time, but they did.
It was very Dramatic, no ... the Way the Wall fell INTO the West.
You need to check your premises. A little time spent studying the stated objectives and strategies of the former Soviets also might be helpful in ascertaining whether they're fans of Sun Tzu and what they meant by: we're not strong enough now but, once we are, we'll launch the greatest peace movement the world has ever seen and -- just when the West least expects it -- crush it with our clenched fist.
Nothing has changed ... unless, of course, you take a close look at closely we now resemble the former Soviet Union in many essential respects.
A nation of Christians who regularly and consciously exclude the Triune Creator -- Father, Son and Holy Spirit -- from the most intimate and creative act they'll ever perform this life has no right to claim that "with Christ" all things are possible where the overturning of abortion is concerned.
Abortion is indeed a logical and reasonable part of any "right" to remain unpregnant while still having sex.
The sooner more self-styled Christians understand this much, the better our hopes will be for prevailing "with Christ" against the horrific and genocidal embrace of abortion by this so-called Christian nation.
That's a ridiculous claim.
In the Soviet Union as in many of the formerly Eastern block countries, their problems are huge. However, they enjoy far more liberties and countries like Poland, enjoy a far better (though still way below ours) standard of living.
I have met countless people from that area of the world and have gotten to know some of them very well. While they all acknowledge great difficulties in their respective countries, they say it was far worse when they were children and young adults under the old regime.
Things have reached a level, perhaps, between the two but the fact that New Russians can be as decadent as their Western enlightened counterparts is not really a ringing endorsement of the "saving graces of western materialism."
I wanted very much to see that things had changed -- it's one reason I went to Russia. A fresh coat of paint and state sanction of the newly-canonized Romanovs doesn't quite cut it for me.
However, I concede it will probably take a long, long time. But it will happen.
=== As time goes by, people will understand your point with greater clarity.
I guess that's part of the drawback of "living on the edge" as I do.
=)
Regards, Tough Stough.
On that point, I couldn't agree more. I have had that discussion with them also. But those are hardly the liberties to which I referred.
When did you go to the Soviet Union?
Two years ago. I'd like to go back since I was with a group at the time and was only able to ditch them with any regularity while in Moscow.
This is ridiculous. The baby isn't even born yet.
The Texas Medical Association, the OB-Gyn's and the Pharmacists was doing everything they could to block this bill, so there was a compromise to protect them from malpractice, in order to take the incremental change that allows for criminal charges in negligence and intentional harm that causes a death.
I fussed and fumed and wrote letters to protest the TMA'sinsistence on tort reform and the exemption from malpractice in these cases. But, as with the cloning and embryonic stem cell issue, I couldn't get anyone to stand for the unborn. The lawyer who was fighting this the hardest works for the TMA, but supposedly in this case, he was working for a "citizens' group." (I probably got lost in the explanation somewhere.)
I don't believe that the Texas Supreme Court could miss the definition of "individual" in the Prenatal Protection Act. By law, the unborn child is and "individual."
Now stop being a gloomy gus!
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