Federal Judge Says Mother Cannot Sue for Stillborn Child’s “Pain and Suffering”

The death of a child is always a tragedy for the parents. When that death is the result of negligence or medical malpractice, the parents will understandably seek justice against the responsible professionals. But, justice is a more complicated matter when the child dies before birth. A recent decision by a federal judge in Atlanta addresses the difficulty raised when trying to decide when life begins for purposes of the law.

Durden v. Newton County

This sad case arises from a 2012 incident involving a pregnant woman incarcerated in Newton County. An Alabama-based contractor helped provide the woman’s medical care while in prison. The prison and the contractor understood this was a “high-risk” pregnancy.

In March 2012, the woman underwent surgery at a county hospital related to complications from the pregnancy. The woman unfortunately suffered further complications following the surgery. The prison apparently waited several days before returning the woman to the hospital. By then it was too late: the woman’s child was stillborn.

The woman subsequently sued the county and the outside contractor on several grounds under federal and Georgia law. In early 2014, the federal claims were dismissed, leaving only the state-law negligence claims against the outside contractor. The contractor then moved to dismiss these remaining charges. (The case remains before a federal court as the contractor is an out-of-state corporation.)

The most notable element of the motion to dismiss dealt with the legal status of the stillborn child. The woman’s lawsuit sought damages for her child’s “pain and suffering” as well as for his wrongful death. The contractor did not seek dismissal of the wrongful death claim, only the pain and suffering claim. As a matter of law, the contractor said, an unborn child cannot recover for pain and suffering.

U.S. District Judge Richard W. Story sided with the contractor on this point. He explained that a mother could recover damages for wrongful death of an unborn child, but not for that child’s pain and suffering. Wrongful death is governed by a specific law in Georgia separate from those governing other personal injuries. Georgia law does recognize wrongful death actions in cases where “quickening”—the point in time when a fetus “is able to move in its mother’s womb”—has already taken place. (This is a rule specific to Georgia; most states require a “viable” fetus.) “However,” Judge Story added, “quickening only applies to wrongful death claims.”

Only a “person” (or a person’s estate if he or she is deceased) may seek damages for pain and suffering in Georgia. And, according to the Georgia Supreme Court in Peters v. Hospital Authority of Elbert County, “persons” only include those children who are born and survive outside the womb. The Supreme Court expressly declined “to accord legal rights to the unborn without conditioning those rights upon live birth.” Accordingly, Judge Story said the mother could not maintain a pain and suffering claim on her child’s behalf against the contractor.

But, as noted above, the mother can still pursue her claim for the child’s wrongful death as well as her own injuries. Judge Story declined to dismiss most other aspects of the case against the contractor, including a demand for punitive damages. The case has moved to discovery and may still take several years to resolve.


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