Bill creates ‘new class of plaintiffs’

Legislation approved by the General Assembly – but not yet signed by the governor – would create a new class of plaintiffs in Virginia civil litigation: representatives of the unborn.

Some observers warn the bill creating a cause of action for the wrongful death of a fetus would give birth to a new coterie of litigation specialists, including lawyers who file fetal death lawsuits and experts who testify about the cause of death.

One supporter said the bill provides a means of compensating grieving family members when an unborn child dies, either from domestic abuse or the wrongful act of someone outside the home.

Among those predicting an onslaught of lawsuits is Richmond General District Judge Robert A. Pustilnik.

Writing in a legislative report to fellow district judges, Pustilnik noted the bill has no limits on who might be targeted in a fetal death lawsuit except the woman carrying the baby.

“Over time, I think that this bill will create more litigation than anything that has come out of the Legislature in many years,” Pustilnik wrote.

Senate Bill 674 would amend Virginia’s wrongful death statute, Virginia Code § 8.01-50, to give the mother a cause of action for a fetal death. There is no language restricting the proof of causation. Whenever a fetal death is “caused by the wrongful act, neglect, or default of any person, ship, vessel, or corporation,” the mother may bring an action “against such tortfeasor,” the bill reads.

The bill was sponsored by Republican state Sens. Thomas A. Garrett of Louisa, Stephen H. Martin of Chesterfield and William M. Stanley of Moneta. It was viewed by some as one of a group of anti-abortion measures advanced during the 2012 Assembly, but one supporter said it has “nothing to do” with abortion.

The bill passed the Senate on a 33-6 vote.

Del. Gregory D. Habeeb, R-Salem, who helped with the wording of the bill, agreed the bill does open the door for a new type of claim, but he said that was the intent. “Literally thousands of women are losing babies because of domestic abuse in the home or the wrongful acts of others outside the home, and they are almost universally going uncompensated for that,” Habeeb said.

Habeeb said Virginia law, since 2004, provides criminal punishment for fetal homicide. This bill, he said, would create a corresponding civil remedy for family members.

Interest groups, including the Medical Society of Virginia and the Virginia Trial Lawyers Association, reviewed the language and determined not to oppose the bill, Habeeb said. Because the bill would allow malpractice claims against physicians if their negligence resulted in miscarriages, Habeeb said supporters sought input from Del. Christopher P. Stolle, R-Virginia Beach, who is an obstetrician. Stolle voted for the bill.

Habeeb said the bill borrowed a definition of “fetal death” that excludes abortion. Both pro-life and pro-choice advocates were aware of the bill, and neither spoke on it, he said. “To me, this bill never, ever had anything to do with abortion,” he said.

Among those voting in favor of the bill was Sen. J. Chapman Petersen, D-Fairfax. He said his law firm has represented mothers who lost their unborn babies through medical malpractice. “I didn’t have a problem with it, because we’ve had cases where malpractice led to the death of a baby, and there was no recovery,” he said.

Defense attorney J. Jonathan Schraub of McLean predicts the bill would open the door to many new lawsuits. “Regardless of what one thinks about the social policy issues, it’s reasonable to expect an increase in litigation,” Schraub said. “It would create an entirely new class of plaintiffs.”

The Virginia Trial Lawyers Association was aware of the bill, but only watched it, according to Charles J. Zauzig III, past VTLA president. “We weren’t pushing it, we weren’t opposing it,” he said.

Stanley, one of the chief patrons of the legislation, is a trial lawyer. He did not return several requests for comment on the bill.

The legislation creates a number of possible defendants, Pustilnik said.

“It will be a doctor’s nightmare, should a patient miscarry while under the doctor’s care,” Pustilnik wrote. “If a woman loses a baby after an automobile accident, a fight, after tripping over something in a friend’s home, a cause of action would be created.”

Schraub said a new cause of action is unnecessary, as existing remedies are “more than adequate.”

Currently, a woman who loses her unborn child because of another’s wrongful act can claim damages for emotional distress, observers agreed.

Zauzig, speaking for himself and not for the VTLA, said only time will tell whether dire predictions about new litigation will be realized. “How it will be utilized and how it will work its way through the courts will remain to be seen,” he said.

Zauzig agreed any lawyer filing suit over an accident where a woman lost her unborn baby would have to consider adding a claim for wrongful fetal death. “You have to be cognizant of it and you’re going to have to consider it,” he said.

The Virginia Association of Defense Attorneys “is not in a position to comment on SB 674 at this time,” said VADA president Lisa Frisina Clement.

There is no word on whether the governor will sign the legislation. Gov. Bob McDonnell still is reviewing the bill, according to a spokesperson. Press Secretary Jeff Caldwell noted the governor has until April 9 to act on 2012 legislation.

Under the bill, actions for fetal death would be brought in the name of the natural mother or – if the mother dies or becomes disabled – in the name of her guardian or personal representative. In a medical malpractice action, the cap on recovery would apply to both the fetal death claim and any claim by the mother.

Schraub warned of attempts to seek loss of income based on speculation about the prospective earnings of an unborn fetus. Zauzig thought such damage claims unlikely, since the wrongful death statute provides only for loss of income to surviving family members. “I can tell you I probably wouldn’t be making that economic loss argument,” Zauzig said.