Court OKs right to seek damages in miscarriage

Woman lost fetus in crash

can get money for distress

August 23, 2002|By Amanda J. Crawford | Amanda J. Crawford,SUN STAFF

The Maryland Court of Appeals yesterday granted a Baltimore woman the right to seek damages for the emotional distress caused by the loss of her pregnancy in a traffic accident, but not for wrongful death of the fetus.

The high court took up the issue after a federal judge prohibited jurors from considering the woman's trauma over the lost pregnancy when determining a settlement in her case, saying that this would amount to a wrongful death claim.

The case treads close to the foundation of abortion law - that a fetus that cannot survive outside the womb is not, in effect, a person. Since 1995, Maryland law has barred wrongful-death claims for the loss of a fetus before it is viable.

The plaintiff's attorney, Dwayne A. Brown of Baltimore, said the court's ruling closes a "gaping hole" in Maryland law by giving women recourse to claim emotional damages if they lose an early-term pregnancy because of the negligent actions of another.

Brown argued that to ignore a woman's suffering from losing a fetus does not make any sense.

"Prior to this case, women did not have a cause of action for nonviable fetuses that were injured - there was no remedy," Brown said. "If this had been an arm that had been cut off, there would have been no question she could claim emotional damages."

The case arose out of a January 2000 accident near the Inner Harbor. Stacey Smith, now 32, was driving on East Pratt Street when, she testified, her car was struck by a truck driven by Diana Borello, then of Westwood, N.J.

A day after the crash, Smith - 19 weeks pregnant at the time - suffered a miscarriage.

When Smith sued in U.S. District Court in Baltimore, jurors were not allowed to consider her distress over the miscarriage or lost work time as she grieved, nor were they allowed to see photographs of the stillborn fetus, court records show.

Smith - who was awarded $14,382 for other injuries - appealed to the U.S. Court of Appeals for the 4th Circuit. It in turn asked the Maryland Court of Appeals whether state law provided for compensation for the emotional distress from the loss of a nonviable fetus.

The court ruled yesterday that damages could be claimed "for the psychic injury inflicted on the mother" but not for her sorrow over the loss of the child, which would be a wrongful death argument.

Scott Patrick Burns, a Baltimore attorney who is the past president of the Maryland Defense Counsel, said he is concerned that the distinction could be too subtle for courts to effectively discern.

"How do you draw the line on what is causing the grief - the loss of the child or not being able to carry the baby through?" he asked. "I don't see the difference."

Borello's attorney agreed that the distinction would be difficult for courts to make.

"I think the obstacle is fashioning a sensible instruction to a jury so that they can distinguish between the damages allowed for wrongful death and the damages that this case would appear to sanction," said Alan R. Siciliano of Lanham.

Yesterday when Smith heard of the court's decision, she was "ecstatic," Brown said.

"She felt [the lower court was] basically saying her child did not exist and was no value to her," Brown said.

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