The Houston Chronicle reports today:
AUSTIN - The parents of a stillborn child cannot sue medical practitioners for negligence because a fetus is not a "person" or "individual" under state laws, the Texas Supreme Court has ruled.From this report in the Fort Worth Star-Telegram:
The court in an 8-1 ruling overturned a decision of the 2nd Court of Appeals in Fort Worth that Tara Reese could sue a Fort Worth hospital for the mental anguish she suffered after her baby died in utero in 1998.Lawyers for Reese had urged the court to follow 37 other states that allow wrongful-death claims for stillborn children. Texas is one of 10 states that do not recognize such claims.
The Texas Legislature in 2003 passed the Prenatal Protection Act, which defines "individual" to include an unborn child at every stage of gestation from fertilization to birth. But lawmakers then said that physicians or other licensed health care providers could not be sued if the death is the result of a lawful medical procedure. * * *
[Chief Justice Tom Phillips, writing for the majority] said the court was following its 1987 decision in Witty v. American General Capital that held the Legislature did not intend to include a fetus when it enacted the wrongful-death and survival laws in 1860 and 1895. The court said Reese could pursue a claim against the hospital for the injuries she sustained.
In a case being watched by abortion rights advocates and foes, the Texas Supreme Court on Friday declined to allow a River Oaks family to sue Fort Worth Osteopathic Hospital for the death of their unborn son.Here is the 12-page majority opinion (thanks to How Appealing) in FORT WORTH OSTEOPATHIC HOSPITAL, INC. v. REESE, a 2-page concurring opinion, and a 14-page dissent.In a decision showing some of the justices' frustration, the court voted 7-1 to stand by legal precedent that allows only infants who are born -- if just for one breath -- the right to be considered as individuals who can sue or have a suit carried out on their behalf. * * *
Chief Justice Thomas Phillips wrote that the court is not expressing an opinion about "whether a fetus is a person in either a philosophical or a scientific sense" but that the Texas Legislature, on numerous occasions, has simply declined to rewrite the wrongful death statute. * * *
Phillips pointed out that the court has revisited the wrongful death statute several times, particularly in 1987, when it said lawmakers did not intend for the words "individual" or "person" to include an unborn fetus.
Even in 2003, when the Legislature passed the Wrongful Death Act giving an embryo or fetus the same protections as the mother from violent crime, it exempted doctors and those doing medical procedures, Phillips said.
Here is a link to the Aug. 25, 2004 ILB entry titled "Fetus-rights case to be heard in IU classroom."
Posted by Marcia Oddi at August 30, 2004 04:47 PM