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Utah high court OKs wrongful death suits over fetuses
This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Parents can file wrongful death lawsuits against health care providers for the death of an unborn child, the Utah Supreme Court ruled on Tuesday.

The high court had been considering whether state law allows such lawsuits over fetuses in a case where a medical condition may have gone undetected and resulted in a stillbirth.

The justices were split on the issue. There was no majority opinion released, but four justices agreed the term "minor child" used in the law includes fetuses.

"In my view, a plain language reading reveals that the term 'minor child,' as used in this statute, includes an unborn child," wrote Chief Justice Christine Durham. "The statute does not itself define the term 'minor child,' but in general usage the term 'child' may refer to a young person, a baby or a fetus. The term 'minor' then, may refer to the period from conception to the age of majority, thereby encompassing an unborn child."

Justice Ronald Nehring disagreed in his dissent.

"The majority's conclusion that an unborn fetus is a "minor child" ... is wrong because 1) the plain meaning of 'minor child' does not include a fetus, (2) a wrongful death cause of action may only be recognized through clear legislative direction , and 3) a construction of 'minor child' that encompasses and unborn fetus creates absurd results under our laws."

The debate stems from a 2007 lawsuit filed in U.S. District Court by a Utah County couple who sued a government-subsidized clinic in Provo for wrongful death, claiming doctors who provided prenatal care were negligent, resulting in the death of the couple's unborn child.

Miguel Carranza and Amelia Sanchez claimed physicians at the Mountainlands Community Health Clinic didn't take adequate precautions when the 39-year-old Sanchez expressed concerns about her fetus' well-being at an April 14, 2006 appointment when she was 9 months pregnant.

Sanchez told doctors she worried about the child and her own health because of her history with preeclampsia during her first two pregnancies.

The condition results in a pregnant woman developing high blood pressure as well as protein in her urine in the late stages of pregnancy. Gone untreated, preeclampsia can result in the death of a mother and her child in severe cases.

Doctors were aware of Sanchez's history of preeclampsia and had deemed her a high-risk pregnancy, according to court documents. In addition to Sanchez's condition, in February 2006, a doctor at the clinic raised concerns that her fetus may have had an ailment known as "double bubble" in the abdomen. That possibility brought speculation that the fetus had "duodenal atresia and the potential for Down's Syndrome," court documents state.

The doctor who identified the fetus' "double bubble" condition also told Sanchez her unborn child was at risk for genetic disorders because of Sanchez's age and other abnormalities discovered with the fetus.

Because of potential problems discussed in February, Sanchez made the April 14, 2006, appointment after sensing problems with the fetus' heartbeat, court documents state. A doctor told Sanchez and Carranza that the fetus' heart rate was lower than in earlier in the pregnancy, but informed the couple that such a change wasn't unusual as pregnancy progresses.

Sanchez asked the doctor at the appointment to be induced because she was experiencing contractions, was 40 weeks pregnant and had lost her mucus plug —signs that she was in labor. But the doctor allegedly told her that "if it were actually time for her to have the baby that she would hurt much more than she did" and that her contractions would be more regular, court documents state.

Sanchez left the appointment and three days later checked into Utah Valley Regional Medical Center after experiencing strong contractions. An ultrasound showed the fetus had no heartbeat and Sanchez delivered a stillborn boy. A doctor told the couple that the child's cord was wrapped around its throat, court documents state, but the child didn't have other defects.

The couple sued the health care providers who attended to Sanchez's pregnancy for medical negligence, demanding an undisclosed amount of damages for funeral costs, pain and suffering and wrongful death.

The defendants in the case are being represented by the U.S. Attorney's Office, because the clinic is a government-aided entity designed for low-income families who are without health care.

U.S. District Court Judge Dale Kimball asked the Utah Supreme Court for clarification on whether the couple could bring a lawsuit forward based on the wrongful death claim.

Kevin J. Sutterfield, an attorney for Sanchez and Carranza, said Tuesday he is pleased with the high court's decision.

"We believe the negligence of the defendant prevented our clients from having a healthy child. We're pleased the court has recognized that a full-term preborn child is a person for purposes of wrongful death," Sutterfield said.

Government attorneys declined to comment on the ruling.

mrogers@sltrib.com

Twitter: @mrogers_trib

Couple sued government-subsidized clinic in Provo over delivery of stillborn boy in 2006.
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