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Recovery for the Death of a Fetus

Whether or not a parent may maintain a cause of action against a negligent healthcare provider for the death of a fetus generally depends on the laws of the jurisdiction in which the medical care was given. The issue is determined on the basis of the definition of the word "person" in the state's wrongful death statute. There is usually some line of demarcation in the statute - a critical stage of development after which an action may be pursued by parents for the death of that fetus. In most jurisdictions, a parent is entitled to maintain an action to recover for the wrongful death of a fetus after the fetus is developed enough to live apart from its mother. Only a few courts have upheld such an action regardless of the viability of the fetus.

The jurisdictions that permit recovery for the wrongful death of a fetus give various reasons for their position, including the following:

The fact that the death of a child occurs due to the negligence of a healthcare provider shortly before or after birth should not be determinative of liability.
A viable unborn child is in fact an existing person and a living human being because it can survive outside of its mother's body.
If there was no recovery for the death of a fetus due to the healthcare provider's negligence, then there would be a wrong without a remedy. The fact that a physician would be liable for the wrongful death of a child immediately after its birth but not immediately prior to its birth is an absurd result.

A minority of states deny recovery for a stillborn infant under the provisions of their wrongful death statutes, and the courts of these states justify this position as follows:

Lack of legal precedent.
An unborn child is a part of its mother until birth and has no independent legal existence.
Permitting recovery for the wrongful death of a fetus would open the door to fraudulent claims.
It is the job of the legislature, not the courts, to specifically create this cause of action.

Wrongful Birth

Wrongful Birth

Wrongful birth is a term used to describe a medical malpractice claim for the birth of a child that would not have been born in the absence of medical malpractice. There are three types of wrongful birth cases: those caused by the failure of a sterilization procedure, those caused by the failure to inform parents-to-be of a birth defect or abnormality in their unborn child, and those caused by a failed abortion attempt. Wrongful birth cases can also be based on a physician's failure to warn a vasectomy patient of the need to use birth control for several months after the procedure. Wrongful birth suits are based on the premise that the parents of the child wrongfully born would have avoided conception or would have aborted the fetus had the malpractice not occurred.

Currently, twenty-eight states recognize wrongful birth claims, and twelve states specifically prohibit them. The states that prohibit wrongful birth are Idaho, Utah, South Dakota, Minnesota, Oklahoma, Arkansas, Missouri, Kentucky, Michigan, Pennsylvania, North Carolina, and Georgia. The Supreme Court of Utah ruled that its law banning wrongful birth lawsuits was constitutional.

To succeed in a wrongful birth case, the plaintiff must show that the health care provider owed a duty to the plaintiff, that the duty was breached, and that the plaintiff suffered damages as a result of the breach. In cases alleging failure to inform parents of a potential birth defect or failure to detect a birth defect though prenatal testing, the plaintiff must also prove that the mother would have aborted the child had she been properly informed. The issue of damages in a wrongful birth case is a controversial one. While no states have allowed damages awards to cover the entire cost of raising the child, some states limit damages to the cost of the continued pregnancy, the delivery, and the costs associated with any abnormality or defect the child has. Damages can also be awarded for pain and suffering and emotional distress. Some courts offset any damages award by a calculation of the positive impact the life of the child has had on the family.

Similar to a wrongful birth lawsuit is a wrongful life suit. In a wrongful life suit, the child, through a parent or guardian, brings the suit, alleging that but for the claimed malpractice, the child would not have been born. Only a few United States jurisdictions allow wrongful life actions.

Malpractice by Pharmacists

New drugs are rapidly being developed and marketed, and more prescriptions are being written than ever before. The population as a whole is aging, and elderly patients account for about one-third of all drugs consumed. The practice of pharmacy itself has radically changed over the last decade. Whereas most pharmacies used to be part of family owed drug stores, they are now frequently owned and operated by national corporations and supermarket chains to allow the consumer to pick up his or her medicine at the same time as groceries and other supplies. The convenience of these superstores can be overshadowed by reckless mistakes made when pharmacists are required to fill a high number of prescriptions. Pharmacy experts conclude that a large part of the problem is a shortage of pharmacists.

Several factors account for the errors made in filling prescriptions, including the following:

Existence of prescription medications with nearly identical names and/or packaging.
Increase in the number of medications being prescribed.
Overworked pharmacists.
Increased number of drugs used to treat a single disease or condition.
Distractions from ringing telephones and customers.
Poor penmanship by physicians.
Inadequate technician assistance.

A misfilled prescription can result in severe injury or death to a consumer who relied on the pharmacy to ensure that the medication they received was the same as the medication prescribed by their physician. Death or injury can result from adverse reactions, improper combinations of drugs, and the deprivation of medications essential to patients' well-being.

A pharmacist may be responsible if he or she incorrectly filled a prescription due to a breach of the standard of care and the error caused injury or death to a customer. In addition, any technical or clerical co-workers of the pharmacist who failed to act in accordance with proper procedures can be potentially liable, and the employing pharmacy may be financially responsible for harm caused by an employee acting in the course and scope of his employment. Some states require a pharmacist to talk to the customers about their prescriptions and its side effects, and a failure to properly counsel could result in a claim of negligence.

In some states, a pharmacist may have an obligation to detect a potentially harmful combination of drugs. He or she may also be required to recognize when a physician has written a prescription that is, on its face, outside the normally dosages recommended by the manufacturer.

Liability Resulting from the Use of Antibiotics

You wake up in the morning not feeling well, you make a quick phone call to your doctor and describe your symptoms to the staff person who answered the telephone, and within an hour, you have a prescription for antibiotics in your hand. The increased use of antibiotics in this country has been labeled "promiscuous," and it is criticized by many conscientious physicians.

Listed among the concerns arising from the use and abuse of antibiotics is the sensitization of an individual patient to a particular antibiotic so that the further use of the drug may lead to serious reactions. Use of an antibiotic can result in allergic or hypersensitive reactions to the drug, and it may cause serious disturbances of the intestinal tract by the elimination of normal and necessary beneficial bacteria needed for digestion. Infections of this type are generally successfully treated if promptly detected.

In addition, wary physicians fear that strains of microorganisms will develop a resistance to the drug, allowing it to flourish even in the presence of the antibiotic. "Staph" infections that are resistant to penicillin are a major hazard in hospitals. They have survived many generations of antibiotics and require antiseptic and aseptic techniques that are increasingly scrupulous, particularly in operating and delivery rooms.

When evaluating a claim against a physician for the improper prescription of antibiotics resulting in injury to a patient, answers to the following questions will help determine the validity and strength of the claim:

Did the patient's complaints reasonably indicate the prescription of the drug?
Did the doctor take the patient's history with a focus on drug allergies?
Were there any less-risky alternatives available?
Did the physician order the patient to discontinue using the drug without undue delay after the patient complained of an unfavorable reaction? Reactions to certain antibiotics such as penicillin can result in serious injury or death.
Was the drug of the type that required medical follow-up or laboratory tests?
Did the physician prescribe the proper dosage and timing of the doses?
Were there adequate precautions taken against unfavorable reactions?

Under the requirements of informed consent, a physician should relate to the patient certain warnings and risks given to him or her by the manufacturer. However, not all of manufacturer's drug warnings must be transmitted to the patient. Courts have concluded that no disclosure is required where the potential risks are minimal when evaluated in conjunction with the disease being treated, particularly when all prudent persons would submit to treatment even if all possible risks were disclosed.

Negligence Versus Assault and Battery

A patient is injured by a physician's conduct. In making a claim for recovery of damages against the physician, is the proper action based in negligence or in the intentional tort of assault and battery?

The basis of the difference in these causes of action is grounded on the doctrine of consent. The doctrine of informed consent imposes a duty on the physician to advise the patient about the nature and risks of the treatment about to be undertaken. Most courts today reserve a medical malpractice claim for assault and battery for those situations in which the patient did not consent to the procedure actually performed by the doctor. In those cases where the patient gave consent to the procedure but was not given the proper disclosure about its nature and risks, negligence is most often seen as the proper cause of action. In fact, several states have enacted laws clarifying this distinction.

In general, a negligence action is a much better "fit" in a medical malpractice claim because it more accurately reflects the physician/patient relationship and avoids the harshness of liability for assault and battery. Many courts view the failure to procure adequate informed consent to a procedure or treatment as just one factor in the entire issue of communications between the physician and the patient.

A negligence claim must prove that the physician owned a duty to the patient based on a standard of care, that he or she breached that duty, and that the patient was injured as the result of the breach. On the other hand, the evidence required to prove a case based on a theory of assault and battery is factually more straightforward. It does not usually depend on expert testimony concerning the issues of breach of an established standard of care or whether that breach was the cause of the patient's injury. Therefore, in cases where the facts warrant a claim of assault based on a total lack of consent and the evidence of negligence is shaky, it may be reasonable to include a claim for assault and battery. However, in most jurisdictions, the period in which that type of action must be filed (the statute of limitations) is shorter than the time within which a negligence action must be brought.