When a pregnant woman contracted fifth disease, an ailment caused by human parvovirus B19, she asked her doctors for extra ultrasound monitoring.
An ultrasound showed that the fetus had problems and she miscarried two weeks later, about three months into the pregnancy. She later sued her doctors for medical malpractice for the wrongful death of her fetus and physical injury to herself.
Fifth disease is a mild illness whose major symptom is a slight rash. It is usually not a major concern for either a pregnant woman or a fetus, but in about five percent of cases during pregnancy, an unborn baby can develop anemia and a miscarriage can result. According to the Centers for Disease Control, there is no standard procedure for monitoring pregnant women who have fifth disease.
The DeKalb Circuit Court threw out her case for two reasons:
- The court said she had no grounds for a wrongful death suit because at three months the fetus was not viable.
- The court said she had no grounds for a personal injury suit because she had argued that the fetus was a separate person and provided no proof of actual injury to herself.
She appealed to the Alabama Supreme Court, which agreed with the lower court on the second part of its decision, but not with the first.
The Alabama Supreme Court based its decision on the fact that courts around the country have decided many cases in favor of the injured fetus even though the prenatal injuries occurred before a fetus had developed to the point of being able to survive birth. Also, the Alabama court had recently determined in another case that the state’s wrongful death law applied to an unborn baby throughout pregnancy.
The ruling means that her wrongful death lawsuit may proceed in the lower courts – but is not a guarantee that she’ll win. After all, if there is no standard procedure for monitoring pregnant women with fifth disease, the court may very well find that the doctor did not breach his or her duty of care.