If an obstetrician’s negligence causes the miscarriage of a nonviable fetus—i.e., one that couldn’t live outside the womb–does the patient have a cause of action for wrongful death?  In Alabama the answer is yes, according to a unanimous opinion by the state’s highest court.

Kimberly Stinnett alleged that two days after being informed by her OB that she was pregnant, she experienced severe cramping and fever and was seen in the ER by Dr. Kennedy, the OB on call.  Stinnett reported that she had experienced two prior miscarriages and an ectopic pregnancy that resulted in removal of a fallopian tube.  After testing, Kennedy administered methotrexate, a drug used to treat ectopic pregnancies by terminating them.

Three days later an ultrasound revealed an intrauterine pregnancy, which Stinnett’s OB said was failing as a result of the methotrexate.  About four weeks after the ER visit, she miscarried.  The fetus had never been viable, but there was a dispute as to whether it could have reached viability if not for the methotrexate.

Stinnett sued Kennedy for medical negligence and, under the state’s civil Wrongful Death Act, for the death of the fetus.  Kennedy moved in the trial court to dismiss the wrongful death claim on the basis that the state’s criminal homicide act had been amended to create an exception from liability for death of a nonviable fetus resulting from unintentional physician error.  The trial court granted the motion.

Kennedy moved for summary judgment on the remaining claims.  The trial court denied the motion but ruled that dismissal of the wrongful death claim precluded recovery for mental anguish and stress arising from loss of the fetus.  The jury found for Kennedy, and Stinnett appealed.

Accepting Stinnett’s allegations as true for purposes of its ruling, the Alabama Supreme Court reversed the dismissal of the wrongful death claim, finding no basis for applying the criminal homicide act’s exception to the civil Wrongful Death Act.

The Alabama high court also rejected Kennedy’s argument that she was entitled to summary judgment on the ground that Stinnett failed to show proximate cause because she couldn’t show that her pregnancy “probably would have progressed and not miscarried but for” the treatment in question.  The court ruled that the civil Wrongful Death Act covers the death of any fetus “regardless of viability.”

The case is Stinnett v. Kennedy, No. 1150889 (Ala. Dec. 30, 2016).