Wrongful death of a fetus

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Under the Texas Wrongful Death Act, “[a] person is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfullness, or default.” Today, this seems only natural: a person who is found to have caused the death of another through negligence must provide compensation. However before 1860, “wrongful death” was not recognized under the law in Texas. Any person (his or her estate) who died lost all rights and could not seek compensation, and neither could any of their family members.

Since 1860, the wrongful death laws have evolved as new cases tested the statutes, especially in relation to constitutional rights. One of those cases, Reese v. Fort Worth Osteopathic Hospital, raised the question as to whether or not the family could sue for wrongful death.

In May 1998, Tara Reese went to the Fort Worth Osteopathic Hospital complaining of dizziness and a fast pulse. Since she was in her seventh month of pregnancy, doctors sent her to Labor and Delivery to monitor her. However the fetus was not continuously monitored. The next morning, doctors confirmed that it had died.

The Reeses brought several claims against the hospital including wrongful death on behalf of their fetus. Both also brought individual suits for their own pain and suffering. Initially, the court found in favor of the hospital and all named health professionals on all points. However after several appeals, the Supreme Court of Texas reversed part of this wrongful death decision.

Central to this complex case were the rights of the fetus. Citing several cases, the Court summed up its argument by stating that a fetus who is not yet born cannot seek damages because the rights given to all people are “contingent on live birth.” One of the key supporting points was that the U.S. Supreme Court has specifically stated that “the unborn” are not included in Fourteenth Amendment, which contains the Equal Protection Clause. In short, a fetus is not considered a person with full rights under the law of Texas. Therefore, the estate of a fetus cannot seek compensation for wrongful death, and neither can the parents or any other party.

Making matters even more complicated was the fact that the state legislature had in fact expanded the Wrongful Death Act in 2003 (which happened during the appeals process of this case) to include unborn children. The statute allows parents to seek compensation for wrongful death of a fetus except (1) for claims that occurred before the changes in the act and (2) for any claims against health care professionals. Since both exceptions applied in the Reese case, the Texas Supreme Court found no reason why it should apply in this wrongful death case.

However, the Court did reverse the decision to prevent the mother from seeking damages resulting from medical malpractice. It found that because she was forced to deliver a still-born baby, she was subjected to – and proved in court – excessive mental anguish as a result of negligence on the part of the health care workers.

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