Wrongful choice, wrongful death, wrongheaded reasoning
Kathleen Parker wrote last week about a groundbreaking case in Illinois. According to news reports in the Chicago Sun-Times, a woman named Michelle Williams has sued John Manchester for wrongful death for the abortion she had after a car accident she was in for which Manchester was at fault. According to Williams, her doctors explained that her fractured pelvis required surgery. The choices they offered her were all unpleasant: abort her child and have the surgery to avoid potential risks to the child from x-rays, surgery or drugs, wait until later in the pregnancy for the surgery - but this might mean needing to rebreak her bones, which might not then heal properly, or have the surgery and hope for the best for the pregnancy. Ms. Williams chose to abort, and then sued. Although the parties settled on the matter of her personal injuries, Mr. Manchester is claiming that he is not responsible for the abortion, as that was Ms. Williams' choice (there's that word again) and not the direct consequence of the accident itself (apparently, Ms. Williams' unborn child was not injured in the accident).
The trial court judge dismissed Ms. Williams' claim, and she is appealing. As this is a case of first impression in Illinois, the appellate court's decision will be interesting to observe.
In her article, Parker seemed stunned that the judge threw out Ms. Williams' claim for wrongful death. But it would seem that she doesn't understand the law. A lot of other folks don't either, so let me try to explain things here as I see them.
I grieve for Ms. Williams. But I am afraid that I agree with the judge. (At least the result - I haven't read the opinion, so it's not clear to me what her reasoning was.) And for two important reasons: one, the pressure she received from the doctor was very possibly misplaced. And two, a decision to the contrary would be bad law and bad precedent.
I say this because I have heard of case after case in which doctors - legitimately terrified of being sued for any possible outcome - "warn" patients about every possible outcome, no matter how implausible or unlikely. When a doctor says, "It's possible your unborn child has already been damaged by x-rays," you can hear the wheels turning a mile away.
I heard similar warnings with both of my recent pregnancies - as an "older" mother in my 40s - and I can't even count the number of people I know personally who were "warned" by their doctor of possible bad outcomes for their unborn children -- (the pressure to abort under those circumstances is enormous -after all, doesn't the doctor know best??) -- and who (like me) have gone on to have perfectly healthy babies.
Like a lot of others, I am incensed at the way litigation has warped the medical - and particularly obstetrical - profession to the extent that you are literally encouraged more strongly to abort your baby than to have it. And I am speaking here as an attorney! What makes me sickest about this whole story is the fact that there was probably nothing wrong with this woman's child, and that there was at least some chance that her child would have come through her surgeries unscathed. My own sister had to have major ovarian surgery in very early pregnancy, and her child was fine.
But turning again to the issues that Kathleen Parker writes about. To my way of thinking - as an attorney AND as a mother - it's one thing to be warned of the risks of surgery necessary to repair broken bones and other incidents of a bad car accident, have the surgery (a perfectly logical and moral choice under the circumstances), and lose the baby.
Under those circumstances, if she sues the driver of the other vehicle, she has every legal right to collect from him for the death of her child. As to Kathleen Parker's comment that it seems "equally cruel" to burden poor Mr. Manchester with the death of the other driver's unborn child, we have an expression in the law for that: "You take the plaintiff as you find him [or her]."
In other words, it is his misfortune if he hits a car with a pregnant woman in it, and she miscarries as a direct result of the accident, or of the surgery necessary to save her life or repair her broken body.
But it is another thing altogether for this woman to say, "Well, I'm not going to take the chance that I lose the child in surgery, or that the x-rays, medication or surgery might damage my child, still so small in the fetal stage of development. So I am going to terminate the child myself." That is NOT an inevitable consequence of Mr. Manchester's negligent driving. It is what we call in the law an "intervening cause."
None of this is to suggest that Ms. Williams should be "punished" for being "selfish." She was well within her legal and moral rights by even the strictest interpretation to receive medical care for her injuries. But frankly, how is the legal rationale different if Ms. Williams' baby had been born, had been in the car with her when she was hit by Mr. Manchester, and so severely injured that the doctors warned her her baby might not survive the surgery they were recommending for it? Would we allow her - or her surgeon - to simply smother the infant with a pillow as a preemptive measure and then sue the other driver for wrongful death?
I know that some attorneys reading this will disagree with me. And so will many others, both pro-choice and pro-life. Strongly. Pro-choicers will resent the above argument that I use, and say, "but a first trimester fetus is not the same as a born infant." Ok, fine. Then why should Ms. Williams be allowed to collect for its wrongful death? Pro-lifers will agree with me that an unborn child is entitled to at least some of the same legal protections as a born one, and that the loss of one is just as painful as the loss of the other. So they won't appreciate my argument that under these circumstances Ms. Williams should not be able to recover from the other driver for the loss of her baby.
To both camps, I say that for the judge in the Williams case to have decided otherwise would have set a terrible precedent - encouraging people to abort and thus convert what should have been a straightforward personal injury case into a wrongful death case for reasons having to do more with a choice by the mother than negligent conduct by the defendant. That is a bad result. Even if it does tell the world that unborn children are - or were - human beings of inestimable value.
Sandra Day O'Connor once said famously that the legal framework of Roe v. Wade was "on a collision course with itself." Ms. Williams, her unborn child, and Mr. Manchester are all victims of just that sort of collision.
The trial court judge dismissed Ms. Williams' claim, and she is appealing. As this is a case of first impression in Illinois, the appellate court's decision will be interesting to observe.
In her article, Parker seemed stunned that the judge threw out Ms. Williams' claim for wrongful death. But it would seem that she doesn't understand the law. A lot of other folks don't either, so let me try to explain things here as I see them.
I grieve for Ms. Williams. But I am afraid that I agree with the judge. (At least the result - I haven't read the opinion, so it's not clear to me what her reasoning was.) And for two important reasons: one, the pressure she received from the doctor was very possibly misplaced. And two, a decision to the contrary would be bad law and bad precedent.
I say this because I have heard of case after case in which doctors - legitimately terrified of being sued for any possible outcome - "warn" patients about every possible outcome, no matter how implausible or unlikely. When a doctor says, "It's possible your unborn child has already been damaged by x-rays," you can hear the wheels turning a mile away.
I heard similar warnings with both of my recent pregnancies - as an "older" mother in my 40s - and I can't even count the number of people I know personally who were "warned" by their doctor of possible bad outcomes for their unborn children -- (the pressure to abort under those circumstances is enormous -after all, doesn't the doctor know best??) -- and who (like me) have gone on to have perfectly healthy babies.
Like a lot of others, I am incensed at the way litigation has warped the medical - and particularly obstetrical - profession to the extent that you are literally encouraged more strongly to abort your baby than to have it. And I am speaking here as an attorney! What makes me sickest about this whole story is the fact that there was probably nothing wrong with this woman's child, and that there was at least some chance that her child would have come through her surgeries unscathed. My own sister had to have major ovarian surgery in very early pregnancy, and her child was fine.
But turning again to the issues that Kathleen Parker writes about. To my way of thinking - as an attorney AND as a mother - it's one thing to be warned of the risks of surgery necessary to repair broken bones and other incidents of a bad car accident, have the surgery (a perfectly logical and moral choice under the circumstances), and lose the baby.
Under those circumstances, if she sues the driver of the other vehicle, she has every legal right to collect from him for the death of her child. As to Kathleen Parker's comment that it seems "equally cruel" to burden poor Mr. Manchester with the death of the other driver's unborn child, we have an expression in the law for that: "You take the plaintiff as you find him [or her]."
In other words, it is his misfortune if he hits a car with a pregnant woman in it, and she miscarries as a direct result of the accident, or of the surgery necessary to save her life or repair her broken body.
But it is another thing altogether for this woman to say, "Well, I'm not going to take the chance that I lose the child in surgery, or that the x-rays, medication or surgery might damage my child, still so small in the fetal stage of development. So I am going to terminate the child myself." That is NOT an inevitable consequence of Mr. Manchester's negligent driving. It is what we call in the law an "intervening cause."
None of this is to suggest that Ms. Williams should be "punished" for being "selfish." She was well within her legal and moral rights by even the strictest interpretation to receive medical care for her injuries. But frankly, how is the legal rationale different if Ms. Williams' baby had been born, had been in the car with her when she was hit by Mr. Manchester, and so severely injured that the doctors warned her her baby might not survive the surgery they were recommending for it? Would we allow her - or her surgeon - to simply smother the infant with a pillow as a preemptive measure and then sue the other driver for wrongful death?
I know that some attorneys reading this will disagree with me. And so will many others, both pro-choice and pro-life. Strongly. Pro-choicers will resent the above argument that I use, and say, "but a first trimester fetus is not the same as a born infant." Ok, fine. Then why should Ms. Williams be allowed to collect for its wrongful death? Pro-lifers will agree with me that an unborn child is entitled to at least some of the same legal protections as a born one, and that the loss of one is just as painful as the loss of the other. So they won't appreciate my argument that under these circumstances Ms. Williams should not be able to recover from the other driver for the loss of her baby.
To both camps, I say that for the judge in the Williams case to have decided otherwise would have set a terrible precedent - encouraging people to abort and thus convert what should have been a straightforward personal injury case into a wrongful death case for reasons having to do more with a choice by the mother than negligent conduct by the defendant. That is a bad result. Even if it does tell the world that unborn children are - or were - human beings of inestimable value.
Sandra Day O'Connor once said famously that the legal framework of Roe v. Wade was "on a collision course with itself." Ms. Williams, her unborn child, and Mr. Manchester are all victims of just that sort of collision.
posted by Portia Sterling | 8:37 PM
1 Comments:
Profound.
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