Skip to comments.Is a fetus a person? The Colorado Supreme Court may have to decide
Posted on 01/27/2013 2:54:39 PM PST by NYer
On the morning of the day she died, 31-year-old Lori Stodghill balanced her breakfast plate on her very pregnant belly and watched it bob up and down as the twin boys inside her kicked and kicked. The saucer-sized dish was "bouncing back and forth," her husband, Jeremy Stodghill, remembers — a sure sign that at 28 weeks, the babies were strong and healthy.
But by that afternoon, Lori wasn't feeling well. At about 3:30 p.m., she called her obstetrician, Dr. Pelham Staples, and reported that she was vomiting and out of breath. It was New Year's Day 2006, and Staples wasn't working in his office, so he instructed her to go to the emergency room at St. Thomas More Hospital in Cañon City, a mile from where she lived.
Jeremy left his job as a prison guard to drive her there. It didn't seem like an emergency at the time, he recalls. Lori told him she was probably dehydrated and needed some fluids.
But in the few minutes it took to drive to the hospital, Lori's condition worsened. She was struggling to breathe by the time Jeremy fetched a wheelchair, took her inside and went to park their van. When he walked back into the ER, he found a nurse rubbing his wife's chest. "Lori, you have to wake up," the nurse was saying. "Her head rolled back, looked up at me and then collapsed onto her chest," Jeremy recalls. "And the nurse hollered, 'I need help in here!'"
Lori was suffering a cardiac arrest and had stopped breathing due to a pulmonary embolism caused by a blood clot that traveled from her leg to her lungs. Two of the risk factors for the deadly condition are pregnancy and obesity, and Lori was experiencing both.
For the next hour, Jeremy stood by as hospital staff frantically tried to bring his wife back to life. After helping to hoist Lori, who at seven months pregnant weighed more than 400 pounds, onto a bed, Jeremy melted into the background and was eventually escorted to an adjacent room, where someone brought him juice and cookies. "I just become a wallflower," Jeremy says.
At some point that afternoon, he was handed a phone to speak to Staples, who never ended up coming to the hospital. "He said, 'Well, what do you want to do? Take the babies? Take the babies?'" Jeremy remembers. "I kept responding, 'I'm not a doctor!'"
A nurse listened for fetal heartbeats, according to depositions taken later. When she didn't hear any, the doctors figured the babies were dead and decided against doing a perimortem Cesarean section, an emergency procedure that can save mothers and babies. Lori's unborn sons stayed with her. Eventually, all three were pronounced dead.
Nearly two years later, after careful consideration and consultations with lawyers, Jeremy sued the hospital, Staples and ER doctor John Pelner for the wrongful death of his wife and twins. He believes the doctors should have done the C-section.
But the hospital and the organization that operates it — Englewood-based Catholic Health Initiatives, which operates 78 Catholic hospitals in seventeen states, including nine Centura Health hospitals in Colorado — have argued that nothing could have been done to save Lori.
Furthermore, the organization has repeatedly asked judges — in Jeremy's initial lawsuit and on appeal — to dismiss the wrongful-death claims with regard to the twins based on a legal argument that would seem to contradict the teachings of the Catholic Church: that is, that a fetus is not a person.
It's an argument that may be settled by the Colorado Supreme Court.
Jeremy and Lori met online in 1999. He was a burly former lumberjack who was working as a corrections officer at the now-shuttered prison in Walsenberg. She was a strong-willed nurse with the state Department of Corrections. They met in person in May of 2000, and a few months later, at a Toby Keith concert at the Colorado State Fair, Jeremy asked Lori to marry him.
"She was cute," Jeremy says. "She loved me for me."
Born in Colorado Springs, Lori was raised in Cañon City by her mother, Susan Wilson, a travel agent who often took her daughter along on trips. They went to Mexico and California, and when Lori fulfilled a dream by graduating from nursing school, Wilson took her to Florida.
"She was my best friend," Wilson says. "She wanted to help people and be there to take care of them."
In her spare time, Lori loved shopping, listening to country music and getting her nails done. During the holidays, she'd wear nursing scrubs decorated with jack-o-lanterns, turkeys or Christmas trees and have her nails painted to match. Lori was also enamored of motorcycles and had several tattoos of Harley-Davidsons and roses. She hoped to own a bike some day.
But most of all, Wilson says, Lori wanted to have a family. Wilson remembers that her daughter was ecstatic when she met Jeremy. "I knew it was serious when I met him," Wilson says. "I could tell by the way they acted and the way they looked at each other."
Jeremy, too, was thrilled to have found Lori. The eldest of three brothers, he moved with his family to Colorado when he was seventeen. His parents bought land in Weston, a tiny old mining town near Trinidad. The family was outdoorsy, and Jeremy grew up attending gatherings of people who dress in period clothing and re-create 1830s fur-trading meetups between the mountain men who harvested beaver pelts and the companies that sold them.
As Jeremy and Lori's relationship grew, they shared their pastimes with each other; she dragged him to concerts in Denver and he taught her to camp, fish and hunt. Her first year out, she bagged a deer. Her fingernails were painted camouflage for the occasion.
The couple wed in September 2001 in Cañon City, where Jeremy had also landed a job with the Department of Corrections. Before they left for a mountain-man meetup, known as a rendezvous, in June 2002, Wilson joked that they'd probably come back pregnant. Sure enough, the couple's daughter, Elizabeth, was born nine months later. Lori was so overjoyed that she had the baby's footprints tattooed on her arm.
"When Libby was born," Wilson says, "that was the peak of her life."
A little more than two years later, Lori became pregnant again. Twins run in her family, so she wasn't surprised to find out that there were two babies. When she and Jeremy learned the twins were boys, they began narrowing down a list of names, settling on Samuel Edward and Zachary James.
By Christmas, Lori was seven months along. She, Jeremy and Libby spent the holiday with Jeremy's family in Trinidad, and when they returned to Cañon City a few days later, Lori was exhausted. That wasn't unusual. Carrying the twins was so tiring that on the advice of her doctor, she'd taken a leave of absence from work in mid-December and planned to stay home until after the babies were born in March. Otherwise, her pregnancy was perfectly ordinary. "It was normal all the way up through her last appointment on December 14," Jeremy says.
In December 2007, ten days before the two-year statute of limitations on wrongful-death claims was set to expire, Jeremy filed a lawsuit in Fremont County District Court against St. Thomas More Hospital; Catholic Health Initiatives; and ER doctor Pelner.
Colorado's wrongful-death law states that "when the death of a person is caused by a wrongful act, neglect or default of another," the party that caused the death "shall be liable."
A year after filing the initial lawsuit, Jeremy added Lori's OB-GYN, Staples, to the list of defendants. Jeremy's lawyer at the time, Denver medical malpractice attorney David Woodruff, didn't sue Staples originally because the doctor assured him that the hospital hadn't told him about Lori's cardiac arrest until 43 minutes after she collapsed — too late to save the babies, according to an affidavit written by Woodruff. "I could have been there in five to seven minutes," Staples said, according to the document. "And if I could not be there immediately, I would have been on the phone while I was driving, telling them to prepare Mrs. Stodghill for a C-section."
Woodruff tried to get Staples's pager records to confirm that was true. But the pager company wouldn't release them without written authorization from Staples, the affidavit says; Staples and his attorney promised to send them, but didn't do so until after the extended statute of limitations that Woodruff had negotiated with Staples's lawyer had expired, the affidavit says.
It turned out that the records were potentially damning. According to the affidavit, they show that Staples was paged within two minutes of Lori's cardiac arrest, not 43. Suspicious that Staples had hidden the pager records and lied about when he was contacted, Woodruff successfully petitioned the court to add the doctor to the lawsuit.
Civil lawsuits move slowly, though, and in August 2010, Catholic Health Initiatives asked a judge to dismiss the case against them altogether, arguing that Lori would have died no matter what the hospital did and that it couldn't be held responsible for the actions of the doctors.
But it was another argument that the organization made that shocked Jeremy and his lawyers. "Under Colorado law, a fetus is not a 'person,'" Catholic Health Initiatives wrote, "and plaintiff's claims for wrongful death must therefore be dismissed."
"The doctrine of the Catholic Church is that life begins at conception," says Jeremy, who isn't Catholic himself. "It made me irritated that they're not following the doctrine of the organization they work for."
The doctrine of the Catholic Church is clear: Fetuses are life, and life must be protected.
"We treat life as if it begins at conception and continues until natural death," says Sister Peg Maloney, a member of the religious-studies faculty at Regis University, a Jesuit college in Denver. Because Catholics believe unborn babies are people, "it's a belief that certainly there was more than one patient involved in this case," Maloney adds.
Neither Catholic Health Initiatives nor its lawyers agreed to speak with Westword for this story, citing the ongoing litigation. Catholic Health Initiatives was founded in 1996, when three separate Catholic health-care systems from around the country merged. The organization decided to place its headquarters in Colorado, where it also entered into a joint operating agreement with the Adventist Health System to operate hospitals in the Centura Health network, including the new and expanded St. Anthony Hospital in Lakewood.
Lawyers for Pelner and Staples also declined to comment. Attempts to contact the doctors directly were unsuccessful. A woman who answered the phone at Staples's office in Cañon City, which is affiliated with St. Thomas More Hospital, said he was no longer practicing there. Asked where he'd gone, she said she had no more information.
The Diocese of Pueblo, which covers Cañon City, likewise refused to answer questions about Catholic Health Initiatives' argument. Instead, a spokeswoman referred us to the Colorado Catholic Conference, which describes itself as "a united voice of the three Catholic dioceses [that] speaks on public policy issues." But a spokeswoman for that organization did not return phone calls or e-mails. The Catholic Health Association of the United States also declined to weigh in: "We will pass on an interview," a spokesman wrote in an e-mail.
But many answers can be found in a guide to moral issues in Catholic health care that is published by the United States Conference of Catholic Bishops. Called "Ethical and Religious Directives for Catholic Health Care Services," the most recent edition was released in 2009 and includes an entire section on the beginning of life.
"The Church's defense of life encompasses the unborn and the care of women and their children during and after pregnancy," the guide says.
The guide goes on to list dos and don'ts for health-care providers. Do encourage natural family planning. Don't allow the use of contraceptives. Do counsel couples toward adoption. Don't offer "reproductive technologies that substitute for the marriage act." Never perform an abortion. Never perform a vasectomy. Always provide prenatal care to expectant mothers. Do induce labor if the mother is suffering from a medical condition and the baby is viable.
Given those beliefs, Catholic Health Initiatives' legal argument is hypocritical, says Miguel De La Torre, a professor of social ethics at Denver's Iliff School of Theology. "What they should be arguing is, 'Oh, no, all life, from the moment of conception, is life and therefore must be protected,'" De La Torre says. "When you establish yourself in this culture as a moral voice, even when it works against you, you have to maintain that moral voice."
But Sister Maloney says that the intersection of religious beliefs and law isn't that simple.
The hospital's attorneys aren't "trying to argue whether unborn children should be recognized as persons," she says. "They're just arguing that they are not in Colorado law."
She points out that Colorado voters have twice rejected, in 2008 and 2010, so-called personhood amendments that would have defined the word "person" as indicating any human being from the moment of conception. Catholic leaders didn't support the pro-life measures because they didn't think a constitutional amendment was the solution.
"We remain committed to defending all human life from conception to natural death," the archbishop of Denver and the bishops of Pueblo and Colorado Springs wrote in a joint statement in 2008. But, they added, "even if this year's personhood amendment is passed in Colorado, lower federal courts interpreting this amendment will be required to apply the permissive 1973 Roe v. Wade abortion decision by the U.S. Supreme Court."
The bishops have, however, supported other measures to protect the unborn, including efforts to increase penalties for attacks on pregnant women and a bill to require pregnant women seeking abortions to be notified that they can first have an ultrasound. For the past five years, the Colorado Catholic Conference has supported bills to make killing a fetus illegal.
Still, University of Denver law professor Tom Russell believes that the hospital's argument is legally sound. "All they're doing is saying here's what the legislature said," says Russell, a torts specialist. "It might make some people within the church uncomfortable, but legally, it's not in any way problematic."
But David Weddle, a religion professor at Colorado College in Colorado Springs, says that while the hospital is free to make any legal argument it wants, the question is "whether it's morally justifiable to defend yourself on a principle you know to be false.
"It would send a very strong message if this hospital were to say, 'We are not legally liable here, but we accept responsibility because we believe that these fetuses were persons,'" Weddle continues. "That's the only consistent argument the church can make."
Pelner and Staples soon joined Catholic Health Initiatives in its argument, and also noted that Colorado's wrongful-death law simply says that survivors can seek compensation for the wrongful death of "a person." It makes no mention of fetuses.
To be considered a person, the lawyers argued, a baby has to be born alive. As proof, they cited a 2008 case in which doctors performed a C-section on a woman who was five months pregnant when she was in a car accident that caused her placenta to detach from the uterine wall. A Colorado appeals court ruled that she could sue the driver who caused the crash because the premature baby lived briefly — even if it was only for an hour and six minutes.
Jeremy's lawyers think the hospital's argument twists the purpose of the wrongful-death law. The point of the law is to make sure that someone who injures another person so badly that he dies doesn't get away with it because the victim is no longer alive to take him to court.
"What we're saying is if you have a viable fetus — and there's no question in this case that these babies were viable — and a doctor negligently causes their death, that the surviving parents ought to be able to bring a lawsuit," says lawyer Beth Krulewitch, who along with attorney Dan Gerash took over Jeremy's case from Woodruff. To deny the parents that right would open up the very loophole that the wrongful-death law seeks to close, Krulewitch argues.
"The person who was negligent would basically get away with it," she says.
Fremont County District Court Judge David Thorson disagreed. In December 2010, he sided with Catholic Health Initiatives and the doctors, and dismissed Jeremy's lawsuit.
But Thorson noted that no appeals court in Colorado had taken up the issue of whether fetuses are people under the law, leaving it an open question. He also noted that the word "person" isn't defined in the statute. If lawmakers meant it to cover unborn babies, he ruled, they would have said so.
Thorson threw out the lawsuit related to Lori, as well. Based on expert testimony, he decided that the blockage of her arteries was so severe that she probably would have died whether or not the doctors had performed a C-section to save the twins.
Jeremy was crestfallen, and even though he was forced to declare bankruptcy after the doctors and the hospital came after him for $118,969 in legal fees, he decided to appeal.
Nine months later, in August 2011, Jeremy's lawyers filed a brief asking a panel of three appellate judges to reverse the district court ruling. To back their case, they cited several cases from inside and outside Colorado. One of the most important was a 1986 decision by former Colorado Supreme Court justice and then-U.S. District Court judge James Carrigan. Faced with a situation in which a nine-months-pregnant woman was killed by a drunk driver, Carrigan found that the woman's husband could sue the bar that served the driver for the wrongful death of both his wife and unborn son.
The purpose of the wrongful-death law, Carrigan wrote, is to "preserve and protect human life." That includes, he added, "a full-term, viable unborn child's right to be born alive."
The case was heard in federal court because of what's known as diversity jurisdiction, which means that the people involved are citizens of different states or countries. Since the accident happened in Colorado, Carrigan had to interpret Colorado law in making his decision. But federal court decisions aren't binding on future state cases.
Even so, Jeremy's lawyers argued that Carrigan's ruling "provides a thoughtful and persuasive framework." They also pointed out that courts in at least thirty other states have found that a viable fetus is a "person" under their wrongful-death laws, many of which resemble Colorado's law. The Colorado Trial Lawyers Association joined in that argument by filing its own legal brief, writing that "common sense, common decency and the majority of courts" support the conclusion that the law should cover viable unborn babies.
The hospital and doctors continued to do battle. But there was a dawning realization in their legal briefs that the issue of fetuses-as-people could be a public-relations disaster.
"Whenever the legal system addresses the rights of the unborn, political winds swirl and passionate debate mounts," the hospital's lawyers wrote.
Soon thereafter, the lawyers for Pelner and Staples appear to have switched their tactics, encouraging the court to decide the case based on another reason altogether, which the court is allowed to do: that the OB-GYN expert hired by Jeremy's lawyers "did not know whether a C-section would have saved the fetuses." If it wouldn't have helped anyway, should Jeremy be allowed to sue the doctors and hospital for not performing it?
That's the question the three appellate judges were interested in when lawyers met to argue the case in April 2012. To prove their point, the doctors' lawyers relied on a snippet of testimony taken from the OB-GYN expert's deposition. The expert was questioned about perimortem C-section, or a C-section performed at or near the time of a mother's death. When asked if "overall, to a probability," most babies born by perimortem C-section die, he answered in the affirmative.
But Krulewitch argued that the doctors' lawyers took the expert's answer out of context. He only said yes after he was told to disregard how quickly the procedure is done. If a perimortem C-section is performed within five minutes of a mother going into cardiac arrest, the expert testified, the chances of a baby surviving are good.
Perinatologist Vern Katz, who wrote the first paper on perimortem C-sections in 1986, says the standard about when to do one is clear: Start the procedure within four minutes so that the baby can be delivered within five minutes, before brain damage begins.
"You don't listen to [fetal] heart tones, because you can't really tell," says Katz, a clinical professor at Oregon Health and Science University. That's because when an unborn baby is in distress, its heartbeat can slow dramatically, making it hard to detect, he explains. Plus, he says, the emergency room is often hectic. "There's yelling and screaming and moving the mom around. It's very chaotic, and you can't verify whether heart tones are there.
"We say, 'Just go for the baby, period,'" he adds.
A pulmonary embolism, which is what Lori suffered, is "a great reason to do a perimortem C-section," Katz explains. Even if the mother can't be saved, you're "doing it to save the baby." At 28 weeks along, he says, "the babies would have been resuscitatable."
In many cases, doing a C-section within five minutes isn't possible. But it was in Lori's case. "Lori was rolled into the emergency room living and breathing," Gerash says. "The unborn fetuses are in the place where they have the best chance."
But the appellate judges agreed with the doctors, ruling last August that Jeremy "failed to produce any evidence" that the doctors' negligence caused the twins to die.
As for the question of whether fetuses are people under Colorado's wrongful-death law, they left it unanswered, and DU law professor Russell understands why. "No judge in the state wants to be the judge who decides the issue," he says. "Almost no judge wants to write an opinion that says, 'Here's what the wrongful-death statute means.' One way or another, they're going to get a lot of heat for it."
Jeremy and his lawyers, however, believe the issue needs to be decided. So in September, despite their repeated losses and mounting legal costs, they appealed to the Colorado Supreme Court.
Jeremy's lawyers are asking the high court to answer three questions: Was the appeals court wrong in dodging the issue of whether Jeremy's unborn sons were "people" under the law? Was the appeals court wrong to instead dismiss Jeremy's lawsuit based on that snippet of testimony? And was the court wrong in deciding that the testimony cast doubt on whether the babies would have survived, when it "was subject to more than one reasonable interpretation"?
There is no deadline by which the Supreme Court must decide whether to take the case. If it does, the justices could remand the case back to the appeals court with instructions to decide whether fetuses are people under the wrongful-death law. Or they could answer the question themselves. If they decide fetuses aren't people, the case is over. If they decide they are, Jeremy will be entitled to bring the issue to trial. "The big reason I want to get back into court," Jeremy says, "is to be able to ask why they didn't try to save the boys."
The Stodghill babies are buried in a picturesque section of a Cañon City cemetery that, compared to the rest, seems almost alive. Their gravestone is in the very back, among memorials so un-weathered and new that some bear the names of people who haven't yet died. On a late-December afternoon, many of them are festooned with poinsettias and tinsel.
The Stodghill stone is no exception. Speckled black and grey and hedged by flowers, it bears four names. On one side, underneath an etching of a pine tree and an elk, is Jeremy's name and a single date. On the other, beneath a motorcycle flanked with long-stemmed roses, is Lori's name, followed by two dates. A small bronze-colored plaque in the middle is inscribed with their sons' names, Samuel Edward and Zachary James. They, too, have only one date.
When Libby visits the cemetery, she takes little gifts for her mom and brothers: a small white angel statue that she and her grandmother found at the garden store; a holiday garland; tiny plastic figurines of Winnie the Pooh and Tigger. She lines them up on the stone's base.
"One time, a couple years ago, we had gone out for lunch," Wilson recalls. "She wanted to go have lunch with her mommy. So we took our sandwiches and sat down on the grass."
Jeremy visits, too. On New Year's Eve, the day before the anniversary of Lori's death, he sometimes takes a bottle of champagne and a glass to the cemetery and has a drink with her.
As for the boys, he has precious few mementos. The coroner who performed the autopsy on Lori removed the babies and took photographs, the only ones Jeremy has. In one picture, the boys — one weighing three pounds, two ounces and the other weighing three pounds, four ounces — lie next to each other on a blanket with their heads and knees touching and their eyes closed. If it weren't for the shocking redness of their naked skin, you might think they were napping.
The coroner also took the babies' footprints, as if they had been born in a hospital and not in a morgue. As Lori did with Libby, Jeremy had the tiny sets of feet tattooed on his chest along with the boys' names, the date they died and two simple words, "Our sons."
Of course they are human, what else would they be?
Other side of the coin: “Is a fetus sub-human”?
When does it become human?
By Illinois standards, after the baby is birthed AND EVEN THEN ONLY IF THE MOTHER WANTS IT.
Unrelated to the central issue, but...the mother was 400 pounds. Did the obstetrician advise her to keep her weight under control and warn her of the danger of gaining so much weight? 400 pounds is a bit much even if you are carrying multiples.
Sad story. Shame on the defendants.
Oh dear God, this is so sad.
The story was bad enough but that photo...OMG.
My sixty year old FETUS is doing quite well these days..
Course I like to call her my sister.. (7 month premmie)..
She has children grand children and all that.. not bad for a FETUS>.
You are right; however, life is not a 'One Size Fits All' model. That is one of the reasons why, for example, public school education fails for certain children who are then labeled as "learning disabled". In life, there will always be exceptions to the rule and it is wrong to base the rulings for all on the exceptions.
We can "thank" then Senator Obama for not signing the Born Alive Act, for that definition.
I went through a high risk twin pregnancy. My HMO told me they could do an emergency C section in six minutes flat. It makes no sense at all that the hospital didn’t try for the babies. Sue them blind!!
Their first responsibility was to save the life of the mother.
You can't conduct a C-section during resusitative efforts.
They couldn't legally stop resusitative efforts until all reasonable effort had been made.
Is a fetus a person?
“Uh, no...it must be....uh....a blob of cells....uh....no idea what it is until....uh...it’s “born”.....uh....but a woman should NOT be punished by having....uh....whatever it is....uh....”
Barrack Hussein Obama
What a sad story. I hope they win this case. Babies/fetuses have DNA — human DNA. Of course they are people!!!!!
No, it isn’t related at all, but I knew someone would have to bring it up. Lots of overweight women do fine in pregnancy and lots of thin or “normal” weight women have problems.
I understand, but 400 pounds is morbidly obese. No wonder she had the cardiac arrest. I had mine when I was half that weight and I wasn’t pregnant. The strain on her heart must have been enormous. Obviously, weight issues are the responsibility of the patient, but I’m wondering how well the doctor monitored her. Did he make any effort to counsel her about weight gain and the dangers of excess weight?
My mind works very differently from most people. :)