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The 10th Circuit Court of Appeals today asked the Oklahoma Supreme Court to answer for it a politically volatile question:

As of September 1-2, 2003, did the Oklahoma Wrongful Death Statute, Okla. Stat. tit. 12, § 1053, afford a cause of action for the wrongful death of a nonviable stillborn fetus?

Many of the facts are not disputed.

Some twenty weeks pregnant, Ms. Pino arrived at the Carl Albert Indian Health Care Facility in Ada, Oklahoma in the early morning of September 1, 2003, complaining of constant cramping and vaginal bleeding. After evaluation, she was diagnosed with a urinary tract infection and released. Approximately three hours after her discharge, the Pinos called for an ambulance to take Ms. Pino back to the hospital because of her increased bleeding and abdominal pain. Upon her admission to the hospital, Dr. John Harvey, an employee of the hospital, performed a vaginal examination and questioned Ms. Pino about her condition. Dr. Harvey diagnosed Ms. Pino with placental abruption, requested that the pediatrician stand by to attend vaginal delivery of the fetus, and ruptured the amniotic sac. At twenty weeks, the fetus was, the parties stipulate, nonviable given the state of available medical technology. The following day the fetus was delivered stillborn.

The Pinos seek "damages for the wrongful death of their fetus, alleging that Dr. Harvey and the hospital rendered negligent medical care and treatment."  Obviously, the doctor and hospital dispute that they committed malpractice, but have chosen first, before engaging in that fact intensive inquiry, to fight over whether one can bring this kind of suit at all.  

The phrasing of the question is based on the fact that an Oklahoma law passed in 2005 allows lawsuits described as "a cause of action for the wrongful death of a nonviable stillborn fetus."  Oklahoma law, as explained by the U.S. Court of Appeals at some length with nuance, was unclear at the time on whether such a lawsuit was permitted.  

The direct point at issue in the case is largely academic, because a statute has been passed now, although it could impact one other case.  But, the Pinos and the general public's interest flows from the fact that the Oklahoma Supreme Court may be put in the position of ruling regarding when Oklahoma common law defines the beginning of life, which could have broad applicability in a variety of cases with a connection to the larger abortion debate.

One can imagine a suit brought for damages to Mr. and Ms. Pino from medical malpractice causing them to suffer emotional and physical injuries in connection with the stillbirth, but that is not the suit brought by the Pinos.  The Pinos probably made this decision for a combination of symbolic reasons and out of the practical considerations of damages in the two different kinds of lawsuits.

This is a quintessential case in which legal theory has practical consequences in terms of the damages that are allowed, when the facts pertinent to damages are undisputed.

Also, this suit, in which the Defendant is the United States of America, is one in which the U.S. government has been arguing in its legal briefs that no such suit exists because a non-viable fetus born stillborn was never alive, and hence could not have wrongfully died, itself a matter of symbolic importance.

There are practical reasons why proving that medical malpractice occurred and caused a harm in a case like this one would be difficult in any case.  Approximately 1 in 4 pregnancies end in miscarriage; some estimates are as high as 1 in 3.  Sometimes errors occur at conception causing a miscarriage and about 50% of the time there is no explanation.  This particular stillbirth was on the late side, but hardly unprecedented.  Proving that something specific done by the doctor or hospital was the cause (it appears that the theory is misdiagnosis and failure to treat based on a proper diagnosis) is hard because it isn't obvious why this happens in general, even with all the medical knowledge we have amassed.  

The facts suggest that the legal issue Oklahoma is being asked to decide may be entirely theoretical, as the real problem may have started and been irremediable even before Ms. Pino arrived at the hospital.  But, our legal system favors quick resolution of cases on the basis of legal issues rather than the disputed facts, where the disputes are regarding legal issue can be resolved based upon undisputed facts.  

So, Oklahoma's Supreme Court is left with a legal hot potato.

Originally posted to ohwilleke on Mon Oct 29, 2007 at 04:40 PM PDT.

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Comment Preferences

  •  ANd if OK's court system (0+ / 0-)

    matches the conservatism of the  regular citizenry, they may not only allow the suit, but would probably love to charge the doctors with  some level of murder.

    The ONLY way I can think of to make sure you're not sued is to sit down with bleeding aptient and/or her spouse if she is unconscious, explain PRECISELY what is happening and how she'll likely hemorrhage to death without treatment and that the 20 week  fetus cannot survive outside the womb. SPell it out in very simple EBglish,. ANd make it VERY CLEAR on the consent form. If they refuse the only treatment that can prevent her bleedign to death, that is HER chocie.

    The last time we mixed religion and politics people got burned at the stake.

    by irishwitch on Mon Oct 29, 2007 at 07:58:54 PM PDT

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