Doctor fights ‘wrongful death’ suit by claiming baby wasn’t viable, so not a person
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.