ALABAMA SUPREME COURT: PHYSICIANS ARE NOT EXEMPT FROM LIABILITY FOR DEATH OF UNBORN PRE-VIABLE CHILD


Law Review’s Lindsey Catlett provides a brief summary of the Alabama Supreme Court’s recent decision in Stinnet v. Kennedy. The case centers around the liability of a physician in connection with the death of an unborn pre-viable child and the rights of mothers to seek civil damages for miscarriages.  Included in the summary is an outline of the court’s reasoning and the possible effects the ruling might have on those who find themselves in similar situations.

The Cumberland Law Review hopes its readers will find this article and our other online content to be helpful in keeping up with developments in our dynamic legal system.


ALABAMA SUPREME COURT:

PHYSICIANS ARE NOT EXEMPT FROM LIABILITY  FOR DEATH OF UNBORN PRE-VIABLE CHILD

Lindsey Catlett[1]

On December 30, 2016, the Alabama Supreme Court clarified its interpretation of rights given to unborn pre-viable children and the liability of physicians who contribute to the termination of pregnancies in Stinnett v. Kennedy.[2] On May 11, 2012 Kimberly Stinnett, then six weeks pregnant, began experiencing abdominal pain and fever.[3] Dr. Kennedy of Women’s Care Specialist P.C. was alerted to Stinnett’s distress while taking calls on behalf of Stinnett’s regular obstetrician.[4] Stinnett and Kennedy met at the emergency room where Kennedy performed a dilation and curettage[5] and laparoscopy to determine if the pregnancy was ectopic.[6] The operative report from the procedures concluded that there was “no evidence of an ectopic pregnancy.”[7] Despite those results, Kennedy still had “a high suspicion” that the pregnancy was ectopic and administered methotrextate. The drug is used to treat ectopic pregnancies by terminating the pregnancy.[8] Several weeks later, Stinnett suffered a miscarriage and subsequently brought suit against Dr. Kennedy and her employer, Women’s Care Specialist P.C.[9]

Stinnett alleged that Kennedy had committed medical negligence and had caused the wrongful death of her unborn fetus for which she sought damages under Alabama’s Wrongful Death Act.[10] The Act provides that an action may be brought, “when the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either, the father, or the mother.””[11] Previously, in Mack v. Carmack, the Alabama Supreme Court determined that Alabama’s Wrongful Death Act permits an action for the death of a pre-viable fetus.

Kennedy and Women’s Care Specialist P.C. argued that the decision in Mack was based on the Brody Act which provides: “an unborn child in utero at any stage of development, regardless of viability” is included in the definition of a person that could be a victim of a homicide. The Act also contained an exception that prevented imposition of criminal liability on a physician for the death of a nonviable fetus as a result of “mistake, or unintentional error on the part of a licensed physician.” Kennedy argued that because the court had applied the Brody Act’s definition of a “person” in Mack, the court should also apply the Act to absolve physicians, like Kennedy, from civil liability for the death of a fetus. The trial court accepted the argument and granted Kennedy’s motion for summary judgment on the wrongful death claim. Thereafter, Stinnett’s remaining claim went before a jury which rendered a verdict in favor of Kennedy.[12]

Stinnett appealed the dismissal of her wrongful death claim to the Alabama Supreme Court. On appeal, the court reviewed the trial court’s decision, focusing on

whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail.[13]

Like the trial court, the Alabama Supreme Court largely relied on its earlier decision in Mack to reach its decision.[14] Specifically, the court focused on the context surrounding the Mack decision. The court noted that Mack had overturned the court’s earlier decisions in Gentry v. Gilmore[15] and Lollar v. Tankersley[16] where the court determined that Alabama did not recognize a cause of action for the wrongful death of a pre-viable fetus.[17] The Alabama Supreme Court next discussed Hamilton v. Scott,[18] which was decided less than a year after Mack.[19] Hamilton, like Stinnett, was a wrongful death action brought by a plaintiff who claimed that her medical providers’ negligence caused the loss of her pre-viable fetus.[20] The court reversed summary judgment in favor of the defendants and remanded the case, [21] stating:

As set forth in Mack and as applicable in this case, Alabama’s wrongful-death statute allows an action to be brought for the wrongful death of any unborn child, even when the child dies before reaching viability. Applying our holding in Mack, . . . supra, we conclude that the summary judgment, insofar as it held that damages for the wrongful death of a pre-viable unborn child were not recoverable, must be reversed and the case remanded for the trial court to reconsider the defendants’ summary judgment motions in light of this Court’s holding in Mack.[22]

The court’s decision in Hamilton strongly supported Stinnett’s argument, because Hamilton was handed down after Mack and did not exclude medical care providers nor apply the exception found in the Brody Act.[23]

The court next turned to the language of the Brody Act relied upon by Kennedy:

Mistake, or unintentional error on the part of a licensed physician or other licensed health care provider or his or her employee or agent or any person acting on behalf of the patient shall not subject the licensed physician or other licensed health care provider or person acting on behalf of the patient to any criminal liability under this section.[24]

The Alabama Supreme Court looked at the plain meaning of the text and determined that it was creating an exception that applied only to a question of criminal liability.[25] Because Stinnett’s cause of action was civil under Alabama’s Wrongful Death Act, the court declined to apply the exception.[26]

The court recognized the public policy arguments set forth by Kennedy,[27] namely that physicians treating both a mother and fetus are in a unique situation which warrants protection from civil liability.[28] Defendants contended that it would not be logical to subject these medical care providers to civil liability for a decision to “preserve the life and health of the mother by clearing an unsustainable pregnancy.”[29] The Alabama Supreme Court disagreed, countering that such physicians are already given a certain amount of protection from civil liability under the Alabama Medical Liability Act[30] which requires plaintiffs in such cases to prove “that the injury or death was proximately caused by a deviation from the standard of care proven, generally, by expert testimony from a similarly situated health-care provider.”[31]

As a result, the Alabama Supreme Court reversed the trial court’s grant of summary judgment and remanded for further proceedings.[32] The court’s decision makes clear that a physician’s exemption from criminal liability under the Homicide Act cannot be extended to immunize a physician from tort liability for the death of a pre-viable fetus. Thus the court’s decision provided Stinnett and others in her position with an opportunity to seek civil damages for the loss of their unborn fetuses as a result of medical negligence.


[1] Candidate for Juris Doctorate, May 2018, Cumberland School of Law, Samford University, B.A. Ouachita Baptist University.

[2] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 (Ala. Dec. 30, 2016).

[3] Id. at *1.

[4] Id.

[5] A curettage is a surgical procedure in which the cervix is dilated and tissue is removed from the lining of the uterus. Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *1 (Ala. Dec. 30, 2016).

[6] Id.

[7] Id.

[8] Id.

[9] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *2 (Ala. Dec. 30, 2016).

[10] Id.

[11] Ala. Code §6-5-391(a) (1975).

[12] Stinnett v. Kennedy, No. 01CV2012903943, 2016 WL 7049095 (Ala. Cir. Ct. May 6, 2016).

[13] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *3 (Ala. Dec. 30, 2016) (quoting Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 791 (Ala. 2007).

[14] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *4 (Ala. Dec. 30, 2016).

[15] Gentry v. Gilmore, 613 So. 2d 1241 (Ala. 1993).

[16] Lollar v. Tankersley, 613 So. 2d 1249 (Ala. 1993).

[17] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *4 (Ala. Dec. 30, 2016) (noting that “Lollar and Gentry halted this trend by concluding that ‘the term “minor child” in § 6–5–391 does not include a fetus that dies before becoming able to live outside the mother’s womb.”) (quoting Gentry v. Gilmore, 613 So. 2d 1241, 1244 (Ala. 1993)).

[18] Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012).

[19] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *10 (Ala. Dec. 30, 2016).

[20] Hamilton v. Scott, 97 So. 3d 728, 729 (Ala. 2012).

[21] Id. at 737.

[22] Id. at 735.

[23] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *10 (Ala. Dec. 30, 2016).

[24] Ala. Code §13A-6-1(b) (1975).

[25] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *11 (Ala. Dec. 30, 2016).

[26] Id.

[27] Id. at 12.

[28] Id.

[29] Id.

[30] Id.

[31] See Ala. Code §6-5-481(9) (1975).

[32] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *16 (Ala. Dec. 30, 2016).

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