Hamilton v. Scott
97 So. 3d 728, 2012 Ala. LEXIS 66, 2012 WL 1760204 (2012)
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Rule of Law:
Alabama's Wrongful Death Act permits an action for the wrongful death of an unborn child, regardless of viability. However, a mother cannot recover damages for negligent infliction of emotional distress based solely on the death of a previable fetus unless she was in the 'zone of danger' or suffered an independent physical injury, as a fetus is considered to have a separate existence from the mother.
Facts:
- In December 2004, Amy Hamilton, pregnant with her second child, sought prenatal care from the Isbell Medical Group (IMG).
- In January 2005, Hamilton contracted 'fifth disease' (parvovirus); although Dr. Isbell ordered bi-weekly ultrasounds, IMG employees repeatedly cancelled, denied, or deemed unnecessary Hamilton's subsequent requests for ultrasounds and immediate specialist referral.
- On February 25, 2005, an IMG ultrasound revealed troubling signs for Hamilton's unborn son, including a 'nuchal fold' suggesting severe anemia, but Dr. Scott advised waiting two more weeks for another ultrasound instead of referring her to a perinatologist.
- On March 10, 2005, after feeling ill and noticing decreased fetal movement, Hamilton returned to IMG, where an ultrasound confirmed her unborn son had died; he was subsequently stillborn on March 11, 2005.
- Dr. Isbell, Dr. Coulter, and Dr. Scott all agreed that Hamilton's unborn son had not reached viability at the time of his death.
Procedural Posture:
- Amy Hamilton filed a complaint in the DeKalb Circuit Court (trial court) against Dr. John Blakely Isbell, Dr. Steven Coulter, Dr. Warren Scott, and the Isbell Medical Group (IMG), alleging wrongful death of her unborn son and negligence under the Alabama Medical Liability Act.
- Hamilton later amended her complaint to include claims for mental anguish and emotional distress.
- The defendants filed a summary-judgment motion, arguing that a wrongful-death action for a previable child was not permitted under Gentry v. Gilmore and Lollar v. Tankersley, and that Hamilton could not recover for emotional distress as she was not in the 'zone of danger' per AALAR, Ltd. v. Francis.
- Dr. Isbell and Dr. Coulter filed separate motions for summary judgment.
- Hamilton conceded that Dr. Isbell was entitled to summary judgment but argued against the other defendants' motions, citing subsequent legislative actions for wrongful death and Taylor v. Baptist Medical Center, Inc. for emotional distress.
- The defendants filed a reply brief, arguing the legislative changes did not alter Gentry and Lollar, and Hamilton misinterpreted Taylor.
- On October 15, 2010, the trial court granted the defendants’ summary-judgment motions on all claims, concluding no wrongful-death action for a non-viable fetus and no emotional distress recovery because Hamilton was not in the 'zone of danger' and fetal death was not a physical injury to her.
- Hamilton appealed the summary judgment to the Supreme Court of Alabama, specifically challenging the ruling in favor of Dr. Coulter, Dr. Scott, and IMG (appellees), but not Dr. Isbell (who was granted summary judgment by concession).
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Issue:
Does Alabama's Wrongful Death Act permit an action for the death of an unborn child who died before reaching viability, and can a mother recover damages for emotional distress resulting from the death of a previable fetus without sustaining physical injury or being in the 'zone of danger'?
Opinions:
Majority - Parker, Justice
Yes, Alabama's wrongful-death statute allows an action to be brought for the wrongful death of any unborn child, even when the child dies before reaching viability. The Court applies its recent holding in Mack v. Carmack, 79 So.3d 597 (Ala. 2011), which explicitly overruled prior precedents (Gentry v. Gilmore and Lollar v. Tankersley) that denied recovery for the wrongful death of a previable unborn child. Mack established that the Wrongful Death Act permits such an action, aligning with the legislature's amendment to the homicide statute protecting an unborn child at any stage of development, regardless of viability. Under Alabama law, a case pending on appeal is subject to any change in substantive law, thus Mack is controlling. No, Hamilton cannot recover damages for emotional distress because she failed to demonstrate she was within the 'zone of danger' or suffered a physical injury from the defendants' actions. Hamilton conceded she was not concerned for her own life, failing to meet the 'zone of danger' test articulated in AALAR, Ltd. v. Francis, 716 So.2d 1141 (Ala. 1998), which incorporates the standard from Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994). The Court also rejected her argument that the death of her unborn son constituted a physical injury to her body, reaffirming Wolfe v. Isbell, 291 Ala. 327 (1973), which held that a fetus has a 'separate existence within the body of the mother' from conception.
Concurring - Parker, Justice
Justice Parker concurred specially to emphasize that the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973), does not bar the recognition of a wrongful-death action for unborn children, regardless of viability. Roe is limited to abortion law and does not control how states protect unborn children in other legal contexts, such as wrongful death or fetal homicide. The viability standard from Roe is neither controlling nor persuasive for wrongful-death law, as it was based on historically inaccurate accounts of common law, misstatements of tort and criminal law, and was, in itself, dictum. The viability standard is also incoherent, arbitrary, and irrelevant to determining the existence, extent, or cause of prenatal injuries or death. Advances in medical science since Roe demonstrate that a unique human being is formed at conception, deserving full legal protection at every stage of development. Therefore, Roe's viability standard should be abandoned in wrongful-death law.
Analysis:
This case represents a significant shift in Alabama law regarding wrongful death claims for unborn children, extending protection to previable fetuses and overruling decades of precedent. It aligns Alabama with a growing number of states recognizing an unborn child as a legal person for tort purposes from conception, demonstrating a clear departure from the 'viability' standard in non-abortion contexts. However, the decision maintains a stringent application of emotional distress recovery, affirming that the death of a fetus does not, by itself, constitute a physical injury to the mother, thus limiting recovery unless the mother was physically harmed or within the 'zone of danger'. This distinction highlights the court's nuanced approach to fetal personhood, recognizing it for wrongful death but not necessarily for direct maternal emotional distress claims without additional physical impact.
