Skip to comments.Doctor fights ‘wrongful death’ suit by claiming baby wasn’t viable, so not a person
Posted on 10/27/2015 6:14:50 AM PDT by wagglebee
HARTFORD, Connecticut, October 26, 2015 (LifeSiteNews) – Melanie and Floyd Foster's baby died, they say, because their doctor, OB/GYN Corinne de Cholnoky, ruptured the baby's membrane while trying to remove an IUD. As a direct result, they say, their premature baby was later born alive but died after two hours.
Because the baby was only 22 weeks along, Dr. de Cholnoky says the baby was not viable and therefore not a person, and no wrongful death occurred.
Because the baby was born alive, the Fosters – and the judge presiding over the case – say the baby was a person, and the wrongful death suit may proceed. Jury selection began this week.
Melanie Foster had an IUD inserted by Dr. de Cholnoky in September 2010. By early April 2011, Melanie returned, complaining that she hadn't had a period in five months, and asked that de Cholnoky remove the IUD.
De Cholnoky did not check to see if Melanie was pregnant. She used forceps to remove the IUD and ruptured the baby's membrane.
Too late, de Cholnoky did an ultrasound and found that Melanie was 22 weeks along with a baby girl. She told the Fosters that the pregnancy was high-risk, but Melanie refused to abort her baby.
On April 17, Melanie developed maternal fevers associated with neonatal sepsis and other symptoms consistent with a damaged fetal membrane. Concerned that Melanie could die, physicians induced labor.
Tiny Annalise Lili Foster was born at 6:50 in the morning. She died two hours later.
The Fosters sued on behalf of Annalise's estate, saying de Cholnoky failed to exercise reasonable care and was negligent, causing Annalise's death.
De Cholnoky's lawyers had argued that the baby girl could not have "passed away" because she was not viable at birth.
State Superior Court Judge Michael Kamp rejected arguments from de Cholnoky's lawyer in late August, explaining that there is no Connecticut case law on whether a wrongful death lawsuit can be filed for a pre-viable baby born alive. He said courts in other states have decided both ways on the issue.
Judge Kamp pointed out that medical experts for the plaintiff and the defendant admitted that the baby was born alive, which legally indicates personhood. "No Connecticut law provided by the defendants or discovered by the court suggests that there is a viability requirement for infants born alive when they were not viable fetuses immediately prior to their birth," the judge stated.
"Where the doctors refer to the birth of a baby, its life and eventual death, one would conclude that the baby was a person, and that person died," the judge wrote.
The judge said the Connecticut Supreme Court in 2010 decreed that the "born alive rule" is the basic standard in both criminal homicide and civil wrongful death cases.
In his ruling, Judge Kamp cited a murder case in which a pregnant woman was shot to death and her 34-week gestation baby was then delivered through cesarean section but died. The shooter was convicted on two counts of murder.
On appeal, the Connecticut Supreme Court held that the preemie had been "born alive" and, because of that, upheld the double murder conviction.
"If the born-alive rule applies to homicide convictions, it would also apply to wrongful-death actions," Judge Kamp said in an opinion denying de Cholnoky's motion.
In a 2008 lawsuit against de Cholnoky, a jury awarded $38.5 million to the parents of a boy born with cerebral palsy because they found that de Cholnoky had waited too long to perform a cesarean section. It was one of the largest medical malpractice awards in Connecticut.
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You can’t prosecute this doctor. The fact that the mother wanted this child instead of choosing an abortion cannot be the deciding factor on wrongful death.
I would be sorely tempted to deny the personhood of several particularly evil figures from the past century: Hitler, Stalin, Mao, Pol Pot, Obama, and other communists. However, that would be a lie. What makes them so disgusting is the fact that they are people, fully human and created in God’s image, but they have knowingly chosen pure evil.
“viable”... what does that mean?
A newborn can’t survive without external inputs.
Isn’t abortion legal at 22 weeks? If its legal to kill a baby at that age then its legal. You can prosecute the doctor for malpractice, but you can’t prosecute him for wrongful death just because this mother didn’t want the baby to die. The mother’s choice cannot be the determining factor for wrongful death.
It's "legal" to murder a baby up until the moment of birth, what difference does that make?
If its legal to kill a baby at that age then its legal.
You seem to miss the fact that this baby was BORN AND ALIVE.
You can prosecute the doctor for malpractice, but you cant prosecute him for wrongful death just because this mother didnt want the baby to die.
He's not being "prosecuted" for anything, it's a civil matter.
The mothers choice cannot be the determining factor for wrongful death.
Nonsense. If a doctor's malpractice causes death, it's wrongful death, the age of the victim is irrelevant.
Only women could write laws as convoluted as this.
No newborn is ever “viable”.
For that matter, there are hoards of "non-viable" adults roaming the interior and faubourgs of every major city throughout Western civilization.
Oops. I forgot. Employing the phrase "western civilization" is surely a "micro-aggression" among those hives of "non-viability" known as "universities."
And to show the absurdity of our laws.... I also argued that a woman should have until the baby is 2 and 1/2 years old to decide if she wants to keep the baby or not. I mean, they need time to really determine if this kid is going to be worth keeping. If they are REALLY ready to be a good parent. To decide if they REALLY want to take care of a child. To decide if they are REALLY ready to be tied down and provide for someone else. To decide if the y are REALLY ready for such responsibility and lifestyle change. The problem with our abortion laws is that women don't have enough time to really make an informed decision. And, the woman might find out the kid is ugly, or looks like her ex husband, or cries to much, or has to eat too often, or is retarded, or just a dumb kid, or can't talk soon enough. Heck, there are a gazillion reasons a woman might want to kill her baby, and certainly we want women to have all of the necessary decision factors so they can REALLY make their best decision.
I didn't' make many friends among the liberal women in the class... but the professor thought it was an amazing argument. (She was a very conservative lady)
I assume you’ve studied the SLED apologetic argument?
On the flip side, one speaker related how he made the argument that there is no difference between abortion and infanticide and some pro-abort women told him afterwards - “You’ve convinced us, we’re now for infanticide”.
Incredible, eh? The assumption behind the equivalence argument is that everyone is opposed to infanticide, but obviously, sexual “freedom” is worth giving even that bit of humanity up.
What’s next? Someone accepting cannibalism because it would be inconsistent not to?
The doctor apparently was careless and negligent, causing the death of an innocent, helpless, defenseless human being, and should be held accountable for that.
But the mother bears some of the responsibility for this tragic death as well. The IUD - a device which can and does act as an abortifacient - shouldn’t have been there in the first place.
Yeah... if it's solely a woman's decision then its solely a woman's decision. Age should have nothing to do with it. Think about it... she gets pregnant from some loser she met one evening.. and the man has no say in anything. His only choice is to pay the child support if she chooses to keep the baby or go to jail. If she aborts it and kills his kid, he has no say. And if he's in the military the government will send her child support straight to her for 18 years.
Why make women make these decisions so quickly. Give them a couple or three years trying to raise this kid to make their decision. And certainly she should have the right to sell the kid to the highest bidder if they want. We can't support income inequality for single moms by depriving them of the right to sell their "goods".
They’ll probably soon have cute little gas chambers where you can insert babies up to a certain size and walk away. “No questions asked”
More humane than vacuum abortion
And yet the brain would be fit to sell for profit with the proceeds going to the nearest socialist political campaign fund right?
A darkness continues to fall upon our nation.
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